DOCUMENTS 


Irrigation 


State  of  Colombo. 
1893. 


ERRATUM. 


Page  134,  Section  2227  should  be  Section  2427. 


IRRIGATION  LAWS 


AND 


INSTRUCTIONS 


TO 


Superintendents  $  Water  Commissioners 


COLORADO. 


PUBLISHED  BY 

STATE     ENOINKER, 


Main 


•    . 


• 


There  has  been  a  demand  for  the  laws,  governing 
the  supply  and  use  of  water  for  irrigation,  in  a  handy 
form,  for  the  use  of  water  commissioners  and  water 
users. 

For  the  benefit  of  the  officers  controlling  and  the 
farmers  who  use  the  waters  of  the  state,  this  book  was 
compiled. 

I  wish  to  acknowledge  the  courtesy  of  secretary  of 
state,  N.  O.  McClees,  in  publishing. 

Respectfully  yours, 

CHARLES  B.  CRAMER, 

State  Engineer. 

Denver,  August  21,  1893. 


379971 


LETTER  OF  INSTRUCTION 


TO 


Superintendents  of  Irrigation  and  Water 
Commissioners  in  Colorado. 


Issued  From  the  State  Engineer's  Office, 
At  Denver,  Colorado,  July  26,  1893. 


Water  commissioners  will  communicate  with  this 
office  through  the  superintendents  of  irrigation  of  their 
respective  divisions,  except  in  cases  of  pressing  import- 
ance or  in  direct  reply  to  letters  from  this  office. 

Superintendents  of  irrigation  will,  in  a  book, 
designs  for  which  can  be  seen  at  this  office,  enter  the 
tabulated  statements  provided  for  in  section  7  of  Senate 
bill  No.  113,  with  the  additions  thereto  indicated  as 
desirable  below,  in  columns  having  the  following 
headings :  , 


1  Number  of  division  in 
which  situated. 

1  Number  of  district  in 
which  situated. 

NAME 
OF 
DITCH, 
CANAL 
OR 
RESERVOIR. 

STREAM 
FROM 
WHICH 
WATER 
IS 
TAKEN. 

Date  of  appropriation. 

Cubic  feet  of  water  per 
sec.  decreed  to  each 
priority. 

Summation  of  decree 
to  each  ditch,  canal 
or  reservoir. 

Cubic  feet  of  water 
previously  appro- 
priated  in  distnct. 

a 

£» 

"t-i 
o 
'C 

P. 

<*H   *j' 
°.y 

S-S 

•E3 
o 

Cubic  feet  of  water 
previously  appro- 
priated in  division. 

Order  of  priority  in 
division. 

Embodied  in  decree 
recorded  on  page... 

Rated  as  entered  on 
page  

O  IRRIGATION    LAWS. 

Each  will  be  furnished  upon  application  to  the  state 
engineer  with  a  book  for  each  district  in  his  division, 
which  book  shall  be  entitled  u  Register  of  District 

No. » 

Each  must  enter  in  said  book  a  tabulated  statement 
relative  to  the  ditches  and  reservoirs  of  the  appropriate 
district,  which  statement  shall  show  in  separate  columns 
(as  herein  below  indicated)  the 


£ 

lit 

83 

I'l 

NAME 

a^ 

$i 

DATE 

^*H 

^^15 

^& 

S  jij 

0 

o  ^  ^ 

Q   ^_»     C 

o>  ctf 

OF 

i;  rt 

OF 

a  o 

3  cr  5 

P,^ 

DITCH   OR   CANAL. 

•Sa-d 

o 

APPROPRIATION. 

<u  8 

^    00   C-* 

11° 

II 

m 

1 

•g  <u  'c  *n 

3  P-P-o 
U 

5  pY-5 
en 

"tt 
$tt 
<j 

And  for  reservoir  priorities  the 


f 

1- 

H! 

e-S 

|o 

^     (1J 

• 

IH 

aS 

fe   *~^ 

NAME 

s- 

-w 

DATE 

00 

«| 

Gj 

?  a, 

S  rt 

o 

^  t! 

V.         ^ 

"33 

*o  rt 

OF 

in  !> 

'^ 

OF 

^  f^ 

£  o 

3 

!>•» 

RESERVOIR. 

'o  o  a 

'o 

APPROPRIATION. 

3 

111  . 

HI 

1u  2   • 

111 

V 

"S 

ii 

a)"^ 

1  s.11 

3  «  «3 

11L& 

|lf 

5 

O 

a 

a 

03 

O 

They  will  also  certify  to  the  correctness  of  this 
tabulated  statement. 

There  shall  also  be  entered  in  said  register  by  the 
superintendent  of  irrigation,  the  rating  of  each  meas- 
uring flume  in  the  district,  constructed  in  compliance 
with  section  1813  of  the  General  Statutes.  The  latter 
information  will  be  furnished  upon  application  to  the 
state  engineer.  The  registers  so  prepared  shall  be 
loaned  to  the  respective  water  commissioners  of  his 
division  during  the  irrigating  season,  except  when  occa- 
sion demands  that  they  shall  be  called  in  for  posting. 

Said  registers  shall  be  kept  as  nearly  as  possible 
posted  to  date  by  the  superintendent  of  irrigation.  They 
shall  be  filed,  when  not  needed  by  the  water  commis- 
sioners, in  the  office  of  the  state  engineer.  The  super- 


IRRIGATION    LAWS. 


intendents  of  irrigation  shall  furnish  the  water  com-, 
missioners  with  written  instructions  to  distribute  the 
water  of  their  districts  in  accordance  with  the  state- 
ments in  said  register. 

Superintendents  of  irrigation  will  report  in  writing  to 
this  office  on  the  first  day  of  each  month,  or  as  soon  there- 
after as  possible,  from  April  to  November  inclusive.  Such 
report  will  be  accompanied  by  the  reports  received  from 
the  water  commissioners  during  the  previous  month. 
It  shall  contain  such  information  as  the  superintendent 
regards  as  likely  to  be  of  service  to  the  state  engineer 
in  his  duties,  and  such  suggestions  as  he  may  have  to 
make  for  the  advancement  of  irrigation,  It  shall 
especially  contain  a  list  of  the  measuring  flumes  erected 
but  not  rated,  and  of  the  measuring  flumes  previously 
rated  but  out  of  order  in  each  district  in  his  division.. 
Said  registers  shall  be  delivered  to  the  water  commis-. 
sioners  by  the  superintendents  of  irrigation  by  July  i, 
of  each  year,  if  not  delivered  previous  to  that  date. 

Each  superintendent  of  irrigation  will  be  supplied, 
on  application  to  the  state  engineer,  with  blank 
Artesian  Well  Statements,  which  he  will  present  either 
in  person  or  through  his  water  commissioners  to  the 
contractor  or  owner  of  each  artesian  well  in  his  divi- 
sion. And  he  will  endeavor  to  have  a  statement  of  each 
artesian  well  not  already  filed  in  his  division  filed  in  the 
state  engineer's  office  on  or  before  August  15,  of  each 
year. 

He  will  have  prepared  by  his  water  commissioners, 
for  each  district  in  his  division,  a  statement  which  shall 
show  with  reference  to  each  ditch  in  each  district,  for 
each  year,  in  separate  columns  (as  herein  below  indi- 
cated) the 


a 

<4-l 

wtf  <u 
&«fl 

-MOO 

a  2  uj 

1 

0 

oJ 

O 

"0  t 

§  g-o 

B 

o 

o 

t/2 

C 

<^  «  bo    ' 

rt      53 

u 

'^ 

a 

^ 

<u 

o  "a  : 

rt  ^  8  ' 

U2 

2 

«g| 

A 

Name  of  Ditch. 

1- 

|s|J 

K 

S-d 

u^ 

ft 

o 

0  a 

-M    <U 

c 

M 

•Sol 
a 

§       g  53 

Sjj&d 

rt  .tj 
a> 

o 

8.1 

o 

(LI 

rj   ^   tU   O 

rt  ^      *^ 

^5 

^_) 

^ 

x 

U 

'     (utd   ^   <§ 

<u      t)"^ 

g 

8 

^ 

2 

.C 

^    >  ^   QJ 

/*  ^  ^    CJ 

u 

00 

H 

fH         *"    M 

5 

5 

8 


IRRIGATION   LAWS. 


And  he  will  file  these  statements  in  the  state  engineer's 
office  by  September  30,  'of  each  year. 

Each  superintendent  of  irrigation  will,  in  person, 
or  through  his  water  commissioners,  cause  to  be  made 
out  with  reference  to  each  district  in  his  division,  and 
file  with  the  state  engineer,  on  or  before  August  15,  a 
statement,  which  shall  show  with  reference  to  each 
ditch  in  each  district  for  the  irrigating  season,  (as  here- 
in below  indicated)  the 


Name  of  Ditch. 


'"3 


Is! 

£.   O+J 


o  ben 

111 
!§a 


¥ 

5' 


By  seeded  grasses  is  meant  cultivated  grasses,  other 
than  alfalfa,  as  timothy,  clover,  etc. 

Bach  water  commissioner  will  embody  in  a  final 
report  to  the  superintendent  of  irrigation  of  the  division 
embracing  his  district,  a  full  account  of  his  labors  dur- 
ing his  encumbency  of  the  office  of  water  commissioner, 
and  such  final  report  will  be  sent  to  the  superintendent 
of  irrigation  by  October  i. 

Bach  superintendent  of  irrigation  will  embody  in 
his  final  report  to  the  state  engineer  a  full  account  of 
the  labors  of  his  office  during  his  occupancy  thereof, 
and  will  accompany  his  final  report  with  the  reports  of 
the  water  commissioners  of  his  division,  and  file  it  with 
the  state  engineer  on  or  before  October  15.  The  labors 
thus  put  upon  superintendents  of  irrigation  and  water 
commissioners  are  considerable.  The  allowance  for 
such  services,  especially  that  to  water  commissioners,  is 
small.  But  the  demand  for  such  information  is 
urgent,  and  the  collection  thereof  can  no  longer 
be  delayed.  The  reports  of  the  superintendents 
of  irrigation  and  those  of  water  commissioners 
will  be  embodied  to  a  considerable  extent  in  the  pub- 
lished report  made  by  the  state  engineer  to  the  gover- 


IRRIGATION    LAWS.  9 

nor,  and  it  will  therein  be  evident  to  what  extent  the 
different  superintendents  and  commissioners  have 
endeavored  to  set  forth  the  irrigation  condition  of  their 
divisions  and  districts.  The  plats  should  be  very  care- 
fully prepared,  as  they  also  will  be  published  as  part  of 
the  report  of  the  official  preparing  them. 

Water  commissioners  will  notify  the  state  engineer 
if  there  is  any  disagreement  as  to  the  amount  of  the 
bond  required  of  them,  upon  the  part  of  the  several 
counties  into  which  their  water  district  may  extend. 
And  in  event  of  such  disagreement,  will  notify  the  state 
engineer  of  the  amount  of  the  bond  fixed  by  the  various 
boards  of  county  commissioners  of  those  counties. 
Thereupon  the  governor  will  fix  the  amount  of  the  bond 
required,  and  the  water  commissioner  will  be  duly  noti- 
fied thereof,  and  file  with  the  secretary  of  state. 

Water  commissioners  will  notify  the  state  engineer 
of  the  approval  and  filing  of  their  bonds.  Superintend- 
ents of  irrigation  and  water  commissioners  will  acknowl- 
edge the  receipt  of  these  instructions. 

It  is  the  duty  of  the  water  commissioners  to  be 
actively  employed  on  the  line  of  the  streams  in  his 
water  district.  He  should  keep  himself  posted  daily  as 
to  the  flow  of  water  in  the  streams  and  as  to  what 
ditches  are  taking  water,  in  order  that  report  thereof 
may  be  made  at  any  time  on  short  notice  from  the 
superintendent  of  division. 

Locks  should  be  ordered  placed  on  all  head-gates 
where  the  owners  refuse  or  are  unable  to  keep  them 
closed  in  accordance  with  instructions  of  water  com- 
missioners. 

Wherever  practicable,  you  will  see  that  waters 
supplied  to  ditches  in  accordance  with  priority,  are  bene- 
ficially and  economically  used,  or  turned  back  into  the 
streams  for  the  benefit  of  others. 


10  IRRIGATION    LAWS. 

WATER   FOR   DOMESTIC   USE. 

AN   ACT 

IN     RELATON    TO  "WATER    FOR    DOMESTIC    PURPOSES,"    PASSED     BY 
THE  EIGHTH  GENERAI,  ASSEMBLY. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

"SECTION  i.  Water  claimed  and  appropriated  for 
domestic  purposes  shall  not  be  employed  or  used  for 
irrigation  or  for  application  to  land  or  plants  in  any 
manner  to  any  extent  whatever;  Provided,  That  the 
provisions  of  this  section  shall  not  prohibit  any  citizen 
or  town  or  corporation,  organized  solely  for  the  purpose 
of  supplying  water  to  the  inhabitants  of  such  city  or 
town,  from  supplying  water  thereto  for  sprinkling  streets 
and  extinguishing  fires  or  for  household  purposes. 

"SEC.  2.  Any  person  claiming  the  right  to  divert 
water  for  domestic  purposes  from  any  natural  stream 
who  shall  apply  or  knowingly  permit  the  water  so 
diverted  to  be  applied  for  other  than  domestic  purposes, 
to  the  injury  of  any  other  person  entitled  to  use  such 
water  for  irrigation,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  upon  conviction,  shall  pay  a  fine  of  not 
less  than  $50  and  not  exceeding  $200,  in  the  discretion 
of  the  court  wherein  conviction  is  had.  Hach  day  of 
such  improper  application  of  water  obtained  in  the 
manner  aforesaid  shall  be  deemed  a  separate  offense. 
Justices  of  the  peace  in  their  several  precincts  shall 
have  jurisdiction  of  the  aforesaid  offense,  subject  to  the 
right  of  appeal,  as  in  cases  of  assault  and  battery." 

There  being  no  statutory  provisions  of  law  gov- 
erning the  distribution  of  water  for  domestic  purposes, 
it  will  not  be  permitted  to  carry  water  in  ditches  exclu- 
sively for  such  purposes,  outside  of  the  order  of  priori- 
ties as  established  by  judicial  decrees  for  irrigation, 
where  such  carriage  will  injuriously  affect  parties  hav- 
ing older  rights  for  irrigation,  unless  a  special  order  of 
the  court  is  obtained  for  such  diversion.  Further  than 
the  above,  no  laws  were  enacted  by  the  Eighth  General 
Assembly  pertaining  to  irrigation  or  affecting  the  duties 
of  the  officers  of  this  department. 


IRRIGATION    LAWS.  II 

The  very  limited  assistants'  fund  provided  for  this 
department  by  the  last  General  Assembly  will  render  it 
impracticable  to  do  any  rating  of  ditches  where  travel- 
ing expenses  are  involved,  except  as  such  expenses  are 
paid  by  the  owners  of  ditches  to  'be  rated. 

Water  commissioners  will,  therefore,  be  compelled 
to  exercise  their  best  judgment  in  the  measurement  and 
distribution  of  water  to  ditches  under  decrees,  until  such 
time  as  a  fund  can  be  provided  for  the  proper  ratings. 

It  is  especially  desired  that  water  commissioners,  in 
the  exercise  of  their  duties,  will  collect  from  all  avail- 
able sources  as  complete  and  accurate  data  as  possible 
relative  to,  the  number  of  acres  of  land  that  can"  be  irri- 
gated from  each  ditch,  the  number  of  acres  in  .each  of 
alfalfa,  seeded  grasses,  natural  grasses  and  fruit  trees ; 
also,  the  acreage  in  all  other  crops  combined. 

Pay  particular  attention  to  number  of  acres  irri- 
gated from  each  ditch  or  reservoir,  and  the  average 
amount  of  water  flowing  in  the  ditch. 

Also  ascertain  the  annual  cost  of  superintendence 
and  repairs  for  each  ditch  in  your  district.  Do  not  con- 
found cost  of  building  or  enlarging  with  cost  of  run- 
ning and  operating,  nor,  on  the  other  hand,  operating 
expense  with  building  expense. 

Where  you  can  do  so,  get  the  cost  of  building  or 
constructing.  In  getting,  observe  the  caution  given 
above. 

The  information  thus  obtained  will  be  published  in 
the  report  from  this  department,  and  will  be  of  value  to 
each  county,  as  showing  the  variety  and  extent  of  pro- 
ductions therein. 

Blanks  will  be  furnished  to  water  commissioners 
on  application  to  the  state  engineer  for  the  collection  of 
information  regarding  the  existing  reservoirs  and  reser- 
voir sites — a  sample  of  which  will  accompany  this  cir- 
cular— and,  where  lands  are  irrigated  by  stored  waters, 
it  is  important  to  know  the  number  of  acres  under  each 
reservoir. 


12  IRRIGATION    LAWS. 

In  artesian  well  districts  blanks  will  also  be  fur- 
nished for  statements  in  relation  thereto. 

RATING   FLUMES.       * 

For  the  more  accurate  and  convenient  measurement 
of  waters  appropriated,  pursuant  to  any  decree  rendered 
by  any  court  establishing  the  claims  of  priority  of  any 
ditch,  the  owners  thereof  are  required  to  construct  and 
maintain,  under  the  supervision  of  the  state  engineer,  a 
measuring  device  for  measuring  the  flow  of  water  in  the 
ditch  in  cubic  feet  per  second. 

This  measuring  device  should  be  an  open  flume, 
with  apron  and  wings,  constructed  as  shown  on  plates 
"A"  and  "  B  "  accompanying  this  letter. 

Where  the  bottom  of  the  ditch  exceeds  six  feet  in 
width  the  flume  is  to  be  sixteen  feet  in  length,  and 
where  less  than  six  feet  in  width  the  flume  is  to  be 
twelve  feet  in  length,  exclusive  in  each  case  of  the  apron 
and  wings.  The  width  of  the  flume  is  to  be  a  little  less 
than  the  average  width  of  the  ditch  and  a  little  greater 
than  the  width  of  the  ditch  on  the  bottom.  The  sides 
of  the  flume  are  to  be  perpendicular,  and  boarded  upon 
the  inside  of  the  posts,  and  to  be  of  sufficient  height  to 
carry  the  greatest  amount  of  water  likely  to  flow  in  the 
ditch.  The  top  of  the  floor  of  the  flume  must  be  of  the 
grade  of  the  bottom  of  the  ditch.  The  flume  is  to  be 
erected  on  as  straight  a  portion  of  the  ditch  as  practica- 
ble, and  not  less  than  200  nor  more  than  800  feet  below 
the  headgate. 

At  points  200  feet  above  and  below  the  location  of 
rating  flume  it  is  required  that  timbers,  not  less  than 
three  inches  thick  and  eight  inches  wide,  and  of  a 
length  not  less  than  the  width  of  the  ditch,  be  sunk  in 
the  bed  of  the  ditch  at  right  angles  to  the  line  thereof, 
until  the  top  of  the  timber  shall  be  on  the  grade  of  the 
ditch.  After  the  measuring  flume  is  erected,  it  will  be 
rated  by  the  state  engineer,  or  his  assistant,  and  a  datum 
mark  will  be  made  thereon  indicating  the  height  to 
which  the  water  commissioners  may  raise  the  water  in 
the  flume  to  allot  the  ditch  the  amount  decreed  thereto 


IRRIGATION    LAWS.  13 

by  district  court.  Dead  water  in  the  flume  should  not 
exceed  one-tenth  of  a  foot  in  depth  when  the  headgate 
of  the  ditch  is  closed. 

WATER  COMMISSIONERS 

Will  notify  this  office  of  the  names  of  the  ditches  in 
your  district  in  which  there  have  been  constructed  no 
rating  flumes,  or  in  which  the  rating  flumes  are  out  of 
repair ;  also  of  the  names  and  addresses  of  the  mana- 
gers of  such  ditches. 

C.  B.  CRAMER, 
State  Engineer. 

U.  S.  Rev.  Stat,  2339.  Vested  rights— right  of 
of  way.  "Whenever,  by  priority  of  possession,  rights  to 
the  use  of  water  for  mining,  agricultural,  manufactur- 
ing or  other  purposes,  have  vested  and  accrued,  and  the 
same  are  recognized  and  acknowledged  by  the  local 
customs,  laws  and  decisions  of  the  courts,  the  possessors 
and  owners  of  said  vested  rights  shall  be  maintained 
and  protected  in  the  same,  and  the  right  of  way  for  the 
construction  of  ditches  and  canals  for  the  purposes 
herein  specified  is  acknowledged  and  confirmed." 

In  1870  Congress  further  enacted: 

U.  S.  Rev.  Stat.,  2340,  Patents,  subject  to  vested 
rights.  "All  patents  granted,  or  pre-emptions,  or  home- 
steads allowed,  shall  be  subject  to  any  vested  and 
accrued  water-rights,  or  rights  to  ditches  and  reservoirs 
used  in  connection  with  such  water-rights,  as  may  have 
been  acquired  under  or  recognized  by  the  preceding  sec- 
tion." 

These  acts  have  been  held  to  be  but  the  legislative 
recognition  of  a  pre-existing  right,  and  not  the  granting 
of  a  new  right  dating  from  the  passage  of  the  law, 
the  formulating  of  a  rule  of  construction  which  the 
courts  would  have  applied  without  the  passage  of  these 
laws;  Broder  v.  Natoma  Water  Co.,  n  Otto  (U.  S.)  274; 
Osgood  v.  Eldorado  Water  Co.,  56  Cal.,  571;  Coffin  v. 
Left-Hand  Ditch  Co.,  6  Colo.,  446. 


14  IRRIGATION    LAWS. 

CONSTITUTION. 
Constitution,  article  2,  section  14: 

Section  287.  Taking  private  property  for  private 
use  in  what  cases.  That  private  property  shall  not  be 
taken  for  private  use  unless  by  consent  of  the  owner, 
except  for  private  ways  of  necessity,  and  except  for  res- 
ervoirs, drains,  flumes  or  ditches  on  or  across  the  lands 
of  others,  for  agricultural,  mining,  milling,  domestic  or 
sanitary  purposes. 

5.  See  Mills'  Ann.  Stat.  1890,  chap.  45,  "Eminent 
Domain;"  see  next  section  and  notes;  also,   see  art.   16, 
sec.  7. 

6.  Where  a  person  in  Colorado,  without  initiating 
any  steps  under  pre-emption  or  other  laws  to  procure 
title  to  public  lands,  places  improvements  thereon,  and 
another  desires  to  construct  his  irrigating  ditch  over  or 
across  such  lands,  if,  by  a  proper  proceeding,    full  com- 
pensation is  determined,  and  is  paid,  for  all  damages  or 
injury  to  the  improvements  caused  by  constructing  such 
ditch,  the  constitution  and  statutory  requirements  are 
complied  with.     Knoth  v.  Barclay,  8  Colo.,  303  (1885). 

7.  Under  these  circumstances,   the  occupant  can 
have  no  compensation  for  the  taking  of  the  land  itself  or 
for  injury  to  the  land  not  taken.     Id.,  304. 

9.  Under  this  section,  the  taking  of  private  prop- 
erty for  private  use  without  the  owner's  consent  must 
be  confined  to  the  purposes  named.     People  ex.  rel.  v. 
District  Court,  n  Colo.,  155  (1887). .  • 

10.  A  tramway  for  private  use  is  not  permitted  to 
be  taken,  as  it  is  not  one  ofv  the  purposes  named  in  this 
section.     Id. 

11.  Mills'  Ann.  Stat.,  1890,   sec.  3158,   is  repealed 
as  far  as  it  is  inconsistent  with  this  section  of  the  con- 
stitution.    It  was  valid  as  a  territorial  law,  but  schedule 
section  i  of  constitution  rendered  \\.protanto,  invalid  as 
a  state  law;  Id.     Private  ways  of  necessity  to  haul  ore 
may  be  taken,  but  that  does  not  include  private   rail- 
ways.    Id.,  156. 


IRRIGATION    LAWS.  15 

Section  510.  Water  public  property.  Sec.  5.  The 
water  of  every  natural  stream,  not  heretofore  appropri- 
ated, within  the  state  of  Colorado,  is  hereby  declared  to 
be  the  property  of  the  public,  and  the  same  is  dedicated 
to  the  use  of  the  people  of  the  state,  subject  to  appropri- 
ation, as  hereinafter  provided. 

Section  510.  Mills'  Ann.  Stat.  1890,  ch.  69,  "Irri- 
gation;" also  Colo.  Const.,  art.  2,  sec.  14,  and  notes. 

22.  Irrigation    denned.      The  word  irrigation,  in 
its  primary  sense,  means  "a  sprinkling  or  watering," 
but  the  best  lexicographers  give  it  an  agricultural  or 
special  signification;  thus:  "The  watering  of  lands  by- 
drains   or   channels." — Worcester.     "The   operation  of 
causing  water  to  flow  over  lands  for  nourishing  plants." 

-Webster.     Platte    Water    Co.  vs.  Northern    Colo.  Irr. 
Co.,  12  Colo.,  529  (1889). 

23.  The    term  irrigation,  as  used  in  Colorado  in 
the  constitution  and  statutes  and  judicial  opinions,  in 
view  of  the  climate  and  soil,  is  in  its  special  sense  to 
wit:  "The  application  of  water  to  lands  for  raising  of 
agricultural  crops  and  other  products  of  the  soil."     Id. 

24.  The  question  oT  water  rights  is  second  to  none 
in  the  state  in  its  importance  and  intricacy,  and  a  legis- 
lative  inquiry    under  Const.,  art.  6,  sec.  3,  as  amended, 
cannot   require  the  wholesale  opinion  of  the  supreme 
court  on  sees.  5,  6,  7  and  8  of  this  article  as  to  irrigation 
in  general.      In    re   S.   R.    on    Irrigation,  9    Col.,    620 
(1886). 

25.  All    unappropriated     water    in    the    natural 
streams  of  the  state    is   dedicated   "to   the    use   of  the 
people,"  and   the  ownership  is  vested  in  "the  public." 
Wheeler  vs.  North  Colo.  Irr.  Co.,  10  Colo.,  587  (1887). 

26.  This  section  guarantees  in  the  strongest  terms 
the  right  of  diversion  and  appropriation   for  beneficial 
uses.     Id. 

27.  The  title  to  water,  after  appropriation  (except, 
perhaps,  the  limited  quantity  actually   flowing  in  the 
consumer's   ditch    or   lateral),  remains   in   the   general 
public,  but  the  paramount  right  to  its  use,  unless  for- 
feited, continues  in  the  appropriation.     Id.,  583. 


1 6  IRRIGATION   LAWS. 

Section  511.  Diverting  unappropriated  water- 
Priority.  Sec.  6.  The  right  to  divert  unappropriated 
waters  of  any  natural  stream  for  beneficial  uses  shall 
never  be  denied.  Priority  of  appropriation  shall  give 
the  better  right  as  between  those  using  the  water  for  the 
same  purpose;  but  when  the  waters  of  any  natural  stream 
are  not  sufficient  for  the  service  of  all  those  desiring  the 
use  of  the  same,  those  using  the  water  for  domestic  pur- 
poses shall  have  the  preference  over  those  claiming  for 
any  other  purpose,  and  those  using  the  water  for  agricul- 
tural purposes  shall  have  the  preference  over  those 
using  the  same  for  manufacturing  purposes. 


I.     COLORADO  DECISIONS  AND  CITATIONS. 


PRIORITY   OF   APPROPRIATIONS. 

1.  The  common  law  doctrine  as  to  riparian  rights 
by  which  the   riparian  owner  is  entitled  to  the  flow  o  f 
water  in  its  natural  channel  upon  and  over  his  lands, 
whether  he  makes  any  beneficial  use  of  it  or  not,  is  in- 
applicable to  Colorado;    Coffin  v.  Left-Hand  Ditch  Co., 
6  Colo.,  447  (1882). 

2.  In  the  absence  of  express  statutes  to  the   con- 
trary the   first   appropriator  of   water  from    a   natural 
stream  for  a  beneficial  purpose,  has,  with  the  qualifica- 
tions contained  in  the  constitution  a  prior  right  thereto, 
to  the  extent  of  such  appropriation;    Id.   Golden   Canal 
Co.  v.  Bright,  8  Colo.,  148;    Hammond  v.  Rose,  n  Id., 
526  (1888). 

3.  The  doctrine  of   priority  of  right  to  water,  by 
priority  of    appropriation  thereof    for   a  beneficial  pur- 
pose, with  the  modifications  declared  in  the   constitu- 
tion, is,  and   always   has   been  in  force   in    this   state; 
Thomas  v.   Guirand,   6   Colo.,  532  (1883);    Shilling  v. 
Rominger,  4  Id.,  103  (1878). 

4.  Water  in  the  various  streams  in  our  climate  ac- 
quires a  value  unknown  in  moister  climates;   here,  in- 


IRRIGATION    LAWS.  17 

stead  of  being  a  mere  incident  to  the  soil,  it  rises  when 
appropriated,  to  the  dignity  of  a  distinct  usufructuary 
estate,  or  right  of  property;  Coffin  v.  Left-Hand  Ditch 
Co.,  6  Colo.,  446  (1886);  City  of  Denver  v.  Bayer,  7  Id., 
115  (1883);  Rominger  v.  Squires,  9  Id.,  329  (1886). 

5.  It  is  and  always  has  been  the  duty  of  the  state 
and  national  governments  to  protect  the  right  of  water 
in  this  country  by  priority  of  appropriation;    Coffin  v. 
Left-Hand  Ditch  Co.,  6  Colo.,  446  (1882). 

6.  The  right  itself,  and  the  obligation  to  protect 
it,  existed  prior  to  legislation  on  the  subject  of  irriga- 
tion.    Id., 

7.  It  is  as  much  to  be  protected  after  patent  of  the 
land  over  which   the   natural  stream   flows  as  before, 
when  such  land  is  part  of  the  public  domain ;  and  it  is 
immaterial   whether  or  not  such  right  is  'or  is  not  ex- 
pressly excepted  from   the   grant.     Id.,    Hammond  v. 
Rose,  ii  Colo.,  525-6  (i! 


8.  The  true  test  of  the  appropriation  of  water  is 
the  successful  application  thereof  to  the  beneficial  use 
designed,  and  the  method  of  distributing  or  carrying  the 
same  or  making  such  application  is  immaterial.  Thomas 
v.  Guirand,  Colo.,  533  (1883).     Larimer  Co.  Res.  Co.  v. 
People,  8  Id.,  616. 

9.  Appropriation  is  the  intent  to  take,  accompan- 
ied by  some  open,  physical  demonstration  of  the  intent, 
and  for  some  valuable  use.     McDonald  v.  Bear  River 
Co.,  13  Cal.,   220.     Larimer  Co.   Res.   Co.  v.   People,  8 
Colo.,  616  (1885). 

10.  The  true  test  of  the  appropriation  of  water  is 
the  successful  application  thereof  to  the  beneficial  use 
designed,  and  the  method  of  diverting  or  carrying  the 
same  or  making  such  application  is  immaterial.    Thomas 
v.  Guirand,  6  Colo.,  533  (1883).       Hayt  J.   in  Farmers' 
H.  L.  Canal  &  R.    Co.   v.    Southworth,    21    Pac.   Rep., 
1028  (June  17,  1889),  X3  Colo.,  114. 


2—1. 


l8  IRRIGATION    LAWS. 

DAM     IN    NATURAL    STREAM — "DIVERT' 
PRIATION." 

(b)  ii.  The  word  "divert"  in  this  section  of  the  con- 
stitution must  be  construed  with  the  word  "appropri- 
ation," and  while  the  former  may  mean  "to  take  or 
carry  away"  the  water  from  the  bed  or  channel  of  the 
stream,  still  the  latter  means  "to  successfully  apply  the 
water  to  the  beneficial  use  designed;"  hence,  if  without 
infringing  on  the  prior  rights  of  others,  a  dam  is  built 
on  the  bed  of  a  now  navigable  stream  on  the  public  do- 
main, such  an  act  is  not  unlawful,  per  se,  and  to  comply 
with  this  section  of  the  constitution  the  water  need  not 
be  immediately  "taken  or  carried  away"  from  the  dam, 
but  simply  "applied  to  the  beneficial  use  designed," 
with  "reasonable  diligence"  and  "without  unnecessary 
delay."  Larimer  Co.  Res.  Co.  v.  People,  8  Colo.,  616-7 
(1885). 

12.  In  the  absence  of  any  written  law  upon  this 
subject,  a  person  would  have  the  legal  right  to  construct 
his  dam  in  a  non-navigable  stream  upon   the  public 
domain,  and1  thus  preserve  water  for  useful   purposes,  so 
long  as  he  did  not  in  any  way  encroach  upon  the  super- 
ior rights  or  interests  of  others.     The  government  alone 
could  complain,  but  it  is  the  policy  of  both  federal  and 
state  governments  to  encourage  the  storing  of  water  for 
useful  purposes  in  arid  districts.     There  is  nothing  in 
the  unwritten  law  which  countenances  the  interference 
by  government  with  this  principle.     Id.,  615. 

13.  One  may  make  a  valid  appropriation  of  surplus 
water  in  the  manner  above,  even  though  an  actual  diver- 
sion from  the  bed  of  the  stream  did  not  take  place  till  a 
subsequent  date.     The  act  of  utilizing  as  a  reservoir  a 
natural   depression,   which   included  the    bed    of    the 
stream,  or  which  was  found  at  the  source  thereof,  was 
not  in  and  of  itself  unlawful.     Id.,  617. 

14.  But  he  who  attempts  to  appropriate  water  in 
this  way  does  so  at  his  peril.     He  must  see  to  it  that  no 
legal  right  of  prior  appropriates,  or  of  other  persons  is 
in  any  way  interfered  with  by  his  acts.     He  cannot 
lessen  the  quantity  of  water,  seriously  impair  its  quality, 


IRRIGATION   LAWS.  19 

or  impede  its  natural  flow,  to  the  detriment  of  others 
who  have  acquired  legal  rights  therein  superior  to  his. 
And  he  must  respond  in  proper  actions  lor  all  injuries 
resulting  to  them  by  reason  of  his  acts  in  the  premises. 
Id. 

15.  While  the  legislature  cannot  prohibit  the 
appropriation  or  diversion  of  unappropriated  water  for 
useful  purposes,  from  natural  streams  upon  the  public 
domain,  that  body  has  power  to  regulate  the  manner  of 
effecting  such  appropriation  or  diversion.  It  may  by 
reasonable  and  constitutional  legislation,  designate  how 
the  water  shall  be  turned  from  the  stream,  or  how  it 
shall  be  stored  and  preserved.  Id.,  618. 

WATER  IS  APPROPRIATED  BY  USE,  NOT  GRANT  OR 

CHARTER. 

(c]  16.  No  company,  unless  it  has  a  charter  that 
will  be  protected  under  the  federal  constitution  from 
any  state  interference,  constitutional  or  legislative,  by 
which  its  obligation  is  impaired,  can  acquire  any  rights 
for  the  purposes  of  irrigation  of  a  different  kind  or 
superior  to  such  as  are  acquired  by  priority  of  appropri- 
ation. Platte  Water  Co.  v.  North  Colo.  Irr.  Co.,  12 
Colo.,  530  (1889). 

17.  There  is  no  local  custom  or  judicial  decision 
of  Kansas  or  Colorado  which  declares  that  a  party  may 
secure  a  grant  to  the  exclusive  use  of  the  water  of  a  nat- 
ural stream,  allow  the  same  to  remain  in  abeyance  for  a 
long  series  of  years  without  making  use  of  the  exclusive 
privilege  so  granted,  and  thereafter  assert  the  same  to 
the   exclusion   of    those    who   have   in   the   meantime 
acquired   rights  to  the   use  of  such    waters   by  actual 
appropriation  and  use  in  pursuance  of  the  general  laws 
of  the  state.     Id.,  531. 

18.  By  the  constitution  and  laws  of  Colorado,  state 
and   territorial,  from   the   earliest   times,  rights  to  the 
beneficial  use  of  water  from  natural   streams  have  been 
acquired     by    diversion    through    prior    appropriation 
rather  than  by  grant.       It  has  been  the  settled  doctrine 
of  our  courts  that  such  appropriation,  to  be  valid,  must 
be  manifested  by  the  successful  application  of  the  water 


20  IRRIGATION   LAWS. 

to  the  beneficial  use  designed  or  accompanied  by  some 
open,  physical  demonstration  of  intent  to  take  the  same 
for  such  use.  Id.,  Yunker  v.  Nichols,  i  Colo.,  555; 
Schilling  v.  Rominger,  4  Id.,  103;  Coffin  v.  Ditch  Co.,  6 
Id.,  446;  Thomas  v.  Guirand,  Id.,  532;  Sieber  v.  Frink, 
7  Id.,  154;  Reservoir  Co.  v.  People,  8  Id.,  616. 

19.  At  common   law  the  right  to  use  the  running 
water  of  a  natural  stream,  not  navigable,  is  an  incident 
to  the  ownership  of  the  soil  through  which  it  flows.     It 
is  a  part  of  the  freehold,  and  passes  only  by  grant  or 
prescription.      Platte  Water  Co.  v.  North  Colo.  Irr.  Co., 
12    Colo.,   532   (1889);    3    Kent   Com.  439;  Ang.  Water 
Courses,    sec.    8;     Gardner    v.    Village  of  Newburg,   2 
Johns,  ch.  162;  Davis  v.  Fuller,  12  Vt.,  178. 

20.  At  common  law  the  right  to  divert  the  water 
of  a  non-navigable  stream  might  be  granted  to  a  certain 
extent,  by  the  proprietor  of  the  soil  through  which  the 
stream  runs.     But  in  the   controversy  under  considera- 
tion such  proprietor   was  the  United  States,  and  appel- 
lant, (Platte   Water   Co.),    shows   no   grant  from   such 
proprietor.    On  the  contrary,  the  act  of  Congress  of  May 
30,  1854,  section  24,  under  which  the  territory  of  Kansas 
was  organized,  in  conferring  legislative  power  upon  the 
territory  (and  from  which  territory  appellant's  charter 
came)  expressly  provided  that  "No  law  shall  be  passed 
interfering   with    the   primary    disposal    of   the   soil;" 
Platte  Water  Co  v.   North  Colo.  Irr.  Co.,   12   Colo.,  532 
(1889). 

21.  The   principal   of    priority   of    appropriation 
must  not  be  ignored  in   a  decree   apportioning  water 
between  consumers;  Burnham  v.    Freeman,    n    Colo., 
605  (1888). 

DOCTRINE   OF   PRIORITY   EXISTED   PRIOR    TO   CONSTITU- 
TION. 

(d)  22.  The  doctrine  of  priority  of  right  to  water 
by  priority  of  appropriation  has  existed  in  Colorado 
from  the  date  of  the  earliest  appropriation  of  water,  and 
it  was  not  first  recognized  and  adopted  in  the  constitu- 
tion; Coffin  v.  Left-Hand  Ditch  Co.,  6  Colo.,  446  (1882). 


IRRIGATION   LAWS.  21 

22a.  The  act  of  congress  (14  U.  S.  Stat.  at  L.  251, 
sec  9,  approved  July  26,  1866,  and  amended  July  9, 
1870,  16  U.  S.  Stat.  at  L.  218,  sec  17;  same  Mill's  Ann. 
Stat.  Appendix)  protecting  priority  of  water  rights,  is  a 
voluntary  recognition  of  a  pre-existing  right  of  posses- 
sion constituting  a  valid  claim  to  its  continued  use,  and 
not  the  establishment  of  a  new  one;  Id.,  447;  Broder  v. 
Natonia  Water  &  M'g  Co.,  101  U.  S.,  276  (1879);  City 
of  Denver  v.  Mullen,  7  Colo.,  363(1884);  and  see  Shill- 
ing v.  Rominger,  4  Id.,  109  (1878);  Hammond  v.  Rose, 
ii  Id.,  526  (1888);  Platte  Water  Co.  v.  North  Colo.  Irr. 
Co.,  12  Id.,  533  (1889).  ^ 

23.  The  act  of  Congress  above  mentioned  says 
nothing  about  the  rights  claimed  by  legislative  grants 
without  actual  possession,  appropriation  and  use;  Platte 
Water  Co.  v.  North  Colo.  Irr.  Co.,  12  Colo.,  531  (1889). 

PRIORITY   MAY   RELATE   BACK  TO  TIME   DITCH   WAS   BE- 
GUN— DILIGENCE — REASONABLE   TIME- 

(e,)  24.  Although  the  appropriation  is  not  deemed 
complete  until  the  actual  diversion  or  use  of  the  water, 
still  if  such  work  be  prosecuted  with  reasonable  dili- 
gence, the  right  relates  to  the  time  when  the  first  step 
was  taken  to  secure  it.  Ophir  M.  Co.  v.  Carpenter,  4 
Nev,  544;  Kelly  v.  Natonia  W.  Co.,  6  Id.,  109;  Sieber 
v.  Frink,  7  Colo.,  153  (1883);  Larimer  Co.  Res.  Co.  v. 
People,  8  Id.,  617  (1885);  Wheeler  v.  North  Colo.  Irr. 
Co.,  10  Id.,  588  (1887). 

25.  One  of  the  essential  elements  of  a  valid  appro- 
priation  of  water   is  the  application  thereof  to   some 
useful  industry.     To  acquire  a  right  to  water  from  the 
date  of  the  diversion  thereof,  one  must  within  a  reason- 
able time  employ  the  same  in  the  business   for  which 
the  appropriation  is  made.     What  shall  constitute  such 
reasonable  time  is  a  question  of  fact  depending  upon 
the  circumstances  connected  with  each  particular  case. 
Sieber  v.  Frink,  7  Colo.,  154  (1883);  HaytJ.,  In  Farmers' 
H.   L,.   C.   &  R.   Co.   v.  Southworth,  21  Pac.  Rep.,  1029 
(June  17,  1889);    13  Colo.,  115. 

26.  To  constitute  a  legal  appropriation,  the  water 
must  be  applied  within  a  reasonable  time  to  some  bene- 


22  IRRIGATION    LAWS." 

ficial  use,  that  is  the  diversion  ripens  into  a  valid  appro- 
priation only  when  the  water  is  utilized  by  the 
consumer.  Id.  Platte  Water  Co.  v.  N.  Colo.  Irr.  Co.,  12 
Colo.,  531  (1889);  Farmers'  H.  L,.  Canal  &  R.  Co.  v. 
Southworth,  21  Pac.  Rep.,  1029,  IO3°  (June  J7>  l889)> 
13  Colo.,  115. 

STREAM  MAY   BE  CARRIED   INTO   A   DIFFERENT  WATER- 
SHED —  POINT   OF   DIVERSION. 

(/)  27.  It  is  competent  to  take  the  water  from 
one  stream  and  carry  it  over  a  water-shed  to  a  different 
drainage,  and  priority  of  appropriation  will  still  obtain. 
Coffin  v.  Left-Hand  Ditch  Co.,  6  Colo.,  449,  etc.  (1882); 
Thomas  v.  Guiraud,  Id.  532  (1883). 

28.'     Change  in  point  of  diversion  does  not  affect  a 
arty's   right  to  priority.     Sieber  v.  Frink,  7  Colo.,  154 


29.  The  right  to  priority  of  appropriation  is  in  no 
way  dependent  upon  the  locus  of  its  application  to  the 
•beneficial  use  designed.     Hammond  v.  Rose,  n  Colo., 
526  (1888);  Coffin  v.  Left-Hand  Ditch  Co.,  6  Id.,  449, 
(1882.) 

30.  The  lands  to  be  irrigated  need  not  be  on  the 
banks  of  the  river,  nor  in  its  neighborhood,  and  may  be 
on  a  different    drainage.     Id.,  Hammond   v.    Rose,    n 
Colo.,  526,  (1888.) 

POINT  OF   DIVERSION,  PLACE   AND   CHARACTER   OF  USE, 
MAY   ALL   BE   CHANGED   IF   NO   ONE   IS   INJURED. 

(g)  31.  In  the  case  of  Sieber  vs.  Frink,  7  Colo., 
154,  the  use  made  of  the  water  diverted  and  the  land 
upon  which  it  was  applied  remained  the  same,  the  only 
change  was  some  eighty  feet  in  the  point  of  diversion  ; 
and  no  one  was  injured  by  this  change,  and  it  was  held 
to  have  been  lawful.  Fuller  v.  Swan  River  P.  M.  Co., 
12  Colo.,  16(1888.) 

32.  Held,  now  also  that  where  the  right  of  no  one 
is  injured,  a  change  in  the  point  of  diversion  can  be 
made  for  the  purpose  of  changing  the  place  of  the  use. 


IRRIGATION    LAWS.  23 

33.  Where  the  right  of  no  one  is  injured,  the  right 
to  change  includes  the  point  of  diversion  and  the  place 
and  character  of  use.     Id. 

34.  A  party  who  makes  a  prior  appropriation  of 
water  can   change  the  place  of  its  use  without  losing 
that  priority  as  against  those  whose  rights  have  attached 
before  the  change.     Id.,  17,  Maeris  v.  Bicknell,  7  Cal., 
263. 

35.  The  rights  of  an  appropriator  to  the  water  of 
a  stream  are  strictly  usufructuary,  and  in  all  cases  the 
effect  of  the  change  upon  the  rights  of  others  is  the  con- 
trolling consideration,  and  in  the  absence  of  injurious 
consequences  to   others,  any   change  which  the  party 
chooses  to  make  is  legal  and   proper.     Fuller  v.   Swan 
River  P.  M.  Co.,  12  Colo.,  19  (1888) ;    Kidd  vs.  Land,  15 
Cal.,  162,  1 80. 

36.  The  right  to  change  the  point  of  diversion  is 
absolute,  except  as  limited  by  the  condition   "that  the 
change  must  not  injuriously  affect  the  right  of  others." 
Fuller  v.   Swan  River  P.   M.    Co.,  12  Colo.,  19   (1888). 
Mining  Co.  v.  Morgan,  19  Cal.,  609,  616. 

37.  Appropriation,   use  and  non-use  are  the  tests 
of  an  appropriator's  right,  and  place  of  use  and  charac- 
ter of  use  are  not.     When  he  has  made  his  appropria- 
tion  he  becomes  entitled  to  the  use  of  the   quantity 
which  he  has  appropriated  at  any  place  where  he  may 
choose    to  convey   it,   and   for  any  use  and  beneficial 
purpose  to  which  he  may  choose  to  apply  it.    Any  other 
rule  would  lead    to   endless   complications,    and    must 
materially  impair  the   value  of  water  rights  and  priv- 
ileges.    Fuller  v.  Swan   River  P.  M.  Co.,   12  Colo.,  17 
(1888).     Davis  v.  Gale,  32  Cal.,  27. 

38.  One  entitled  to  divert  a  quantity  of  water  from 
a  stream  may  take  the  same  at  any  point  on  the  stream, 
and  may  change  the  point  of  diversion  at  pleasure,  if 
the  rights  of  others  be  not  injuriously  affected  by  the 
change.     Junkans  v.  Bergin,  67   Cal.,   267-270.     Fuller 
v.  Swan  River  P.  M.  Co.,  12  Colo.,  17  (if  ~ 


(Ji)     Abandonment.     See  sec.  3138,  note  i. 


24  IRRIGATION   LAWS. 

39.  A  failure  to  use  for  a  time  is  competent  evi- 
dence on  the  question  of  abandonment,  and  if  such  non- 
user  is   continued   for  an  unreasonable  period,   it  may 
fairly  create  a  presumption  of  an  intention  to  abandon  ; 
but  this   presumption   is  not   conclusive,  and  may  be 
overcome  by  other  satisfactory  proofs.     Sieber  v.  Frink, 
7  Colo.,  154  (1883).     Instance  of  abandonment,  Dorr  v. 
Hammond,  7  Colo.,  83  (1883). 

40.  It   is   not  reasonable  to  suppose  that  priority 
of  right  to  water,  where  water  is  scarce  or  likely  to  be- 
come so,  will  be  lightly  sacrificed  or  surrendered  by  its 
owner,  nor  should  the  owner  of  such  a  right  be  held  to 
have  surrendered  it  or  merged  it,  except  upon  reason- 
ably   clear   and    satisfactory   evidence.      Rominger   v. 
Squires,  9  Colo.,  329  (1886). 

41.  Where    parties    with    different    priorities    in 
water  from  an  old  ditch  agree  to  build  a  new  one,  but 
in  such  agreement  say  nothing  as  to  the  division  of  the 
water,  it  must  not  be  inferred  that  such  silence  in  the 
contract  is  any  waiver  of  priorities,  and  a  court  has  no 
authority  to  reduce  their  priorities  to  a  common  date. 
Id.;  Hayt,  J.,  in  Farmers'   H.  L.  Canal    &   R.    Co.   v. 
Southworth,  13  Colo.,   114-136;  Helm,  J.,  in  Id. ,  118-9. 
Instance   of  abandonment:    Dorr   v.  Hammond,  7  Id., 
83  (1883). 

42.  The   constitution   and  statutes  recognize  the 
right  to  construct  and  maintain  reservoirs.      (See  Mills' 
Ann.  Stat.,  1890,  sec.  2270.)      Larimer   Co.   Res.  Co.  v. 
People,  8  Colo.,  615  (1885). 

INTERNAL    IMPROVEMENT. 

(i)  43.  A  system  of  reservoirs  and  canals  for  the 
purpose  of  storing  and  delivering  water  to  all  within 
reach  thereof,  with  the  control  retained  by  the  state,  is 
an  "internal  improvement,"  to  which  the  "internal 
improvement  fund"  may  be  devoted.  In  re  S.  R.  as  to 
Inter.  Imp.  Fund,  12  Colo.,  286-7  (1888);  in  re  S.  R.  as 
to  Inter.  Imp.  Fund  of  Enabling  Act,  Id.,  288. 

44.  The  constitution  says  nothing  about  changing 
channels  of  natural  streams,  but  the  right  to  divert  the 


IRRIGATION    LAWS.  25 

unappropriated  waters  of  natural  streams  to  beneficial 
uses  is  guaranteed.     Id. 

45.  In  any  canal  or  reservoir  system  devised  the 
constitutional  rights  of  prior  appropriators  must  not  be 
invaded.  Id. 

REGULATION   OF   USE   OF  WATER. 

(/)  46.  A  determination  of  the  priorities  of  water 
rights  is  incidental  to  a  proper  regulation  of  the  use  of 
water  diverted  from  the  natural  streams  of  the  state. 
Golden  Canal  Co.  v.  Bright,  8  Colo.,  147  (1884). 

47.  The  payment  of  expenses  and  costs  in  deter- 
mining such  priorities  would  naturally  be  considered  in 
an  act  regulating  the  use  of  water.  Id.,  148. 

DITCH   DECREES  STATUTORY. 

(k)  48.  The  acts  of  1879  (L-  79,  p-  94,  etc.),  and 
1881  (if.  '81,  p.  142,  etc.);  same  G.  S.,  '83,  pp.  571-584; 
same  (Mills'  Ann.  Stat.  1890,  sec.  2399-2439),  as  to  the 
settling  of  priority  of  rights  by  referee,  etc.,  provided  a 
purely  statutory  proceeding  to  determine  the  priority  of 
rights  to  the  use  of  water  for  irrigation,  between  ditch, 
canal  and  reservoir  owners,  taking  water  from  same 
natural  stream;  this  proceeding  cannot  be  used  for  the 
purpose  of  determining  the  claims  of  parties  to  the  use 
of  water  for  domestic  or  other  purposes,  not  fairly  with- 
in the  term  irrigation,  as  above  defined.  Platte  Water 
Co.  v.  N.  Colo.  Irr.  Co.,  12  Colo.,  529,  533  (1889). 

49.  The  right  of  the   appellant   company  (Platte 
Water  Co.)  as  an  appropriator   of  water   for  purposes 
other  than  irrigation,  and  the  rights  of  the  city  of  Den- 
ver (not  a  party  to  the  record)  as  a.  consumer  of  water 
for  any  purpose,  cannot  be  adjudicated  by  the  courts  in 
such  proceedings;  Id.,  534. 

(i).     The  Wheeler  case — The  pleadings. 

50.  The  case  of  Wheeler  v.  The  Northern  Colo- 
rado Irrigation  Co.,   10  Colo.,   582  (Jan.  4,  1888);  S.  C., 
17  Pac.  Rep.,  487,    was   a   madamus   proceeding.     The 
appellant,  Wheeler,  as  relator,   brought  the  action  to 


26  IRRIGATION    LAWS. 

compel  the  respondent  company  to  furnish  him  water 
for  the  irrigation  of  his  lands,  under  the  ditch  of  said 
company.  The  alternative  writ  was  granted  and 
demurred  to  by  the  company,  and  the  demurrer  sus- 
tained, and  from  the  judgment  entered  on  said  demurrer 
in  favor  of  the  respondent,  said  Wheeler  appealed. 
The  material  allegations  of  the  petition  (and  alternative 
writ,  which,  with  the  exception  of  its  introduction  and 
conclusion,  is  a  verbatim  copy  of  the  petition.  Printed 
abstract,  fol  52),  are  as  follows  : 

1.  That  appellant  is  a  corporation. 

2.  That  it  was  incorporated  to  appropriate  water 
out  of  the  Platte  river,  to  conduct  it  over  a  specified 
route,  and  for  compensation  therefor,  to  supply  it  to  the 
tillers  of  the  land  lying  thereunder,  with  which  to  irri- 
gate the  same. 

3.  That  pursuant  thereto,  it  constructed  a  ditch, 
and  run  the  water  from  said  stream  therein. 

4.  That  petitioner  is  the  owner  of  land  under  said 
ditch,  which  is  arid,  and  by  reason  thereof  it  cannot  be 
made  fruitful  without  the  aid  of  said  water. 

5.  That  said  land  is  dependent  on  said  water,  there 
being  no  other  source  of  supply  therefor ;  and  relator 
relying  on  his  right  to  his  share  of  the  water  running  in 
said  ditch,  not  otherwise  appropriated,  set  out  and  has 
now  growing  trees,  shrubbery,  crops,  etc.,  which  will  die 
unless  irrigated. 

6.  That    relator    applied    for    and   demanded    of 
respondent  water  with  which  to  irrigate  said  growing 
things,  and  to  that  end  tendered  to  it  u  the  price  of  water 
established  and  demanded  by  respondent  as  water  rates 
for  such  purposes ;"  also  offered  and  was  ready,  able  and 
willing  to  conform  to  and  be  governed   "by  all  lawful 
and  reasonable  rules  respecting  the  use  of  said  water  " 
running  in  said  ditch  ;  and  that  said  demands,  tenders, 
offers  and  water  were  each  refused,  unless  he  would  sign 
the  contract  set  out  below  and  agree  to  pay  the  royalty 
exacted,  and  grant  the  company  right  of  way  through 
his  lands  for  its  ditch  without  compensation. 


IRRIGATION   LAWS.  27 

7.  That  at  said  time  appellant  had  running  in  its 
said  ditch,  unappropriated,  and  not  being  used  for  any 
beneficial  purposes,  the  waters  wherewith  to  supply 
relator. 

51.  The  great  importance  that  attaches  to  this  case 
of  Wheeler  vs.  The  Northern  Colorado  Irrigation  Co. , 
both  justifies  and  requires  its  fullest  presentation.     The 
printed  reports  of  this  case  fail  to  set  out  the  contract 
involved  in  the  suit,  and  the  opinions  of  Helm,  J.,  and 
of  Beck,  Ch.  J.,  contain  a  quotation  of  but  one  or  two 
sentences  taken  from  the  contract.     Justice  Elbert  did 
not  sit  in  the  case,  and  there  is  a  separate  opinion  by 
each  of  the  other  justices.     Helm,  J.,  writing  the  prin- 
cipal opinion,  says  :     "  This  contract  contains  a  number 
of  conditions  that  appear  unreasonable,  and  as  I  con- 
strue the  constitution  and  statutes  are  of  doubtful  legal- 
ity.    But   it  is   sufficient   to   recall    the    fact   that    the 
unlawful  demand  of  $10.00  per  acre  for  the  right  to  use 
water  is  a  conspicuous  provision  therein.     Relator  could 
no  more  be  required  to  execute  a  contract  containing 
this  condition,  than  he  could  be  compelled  to  comply 
with  the  demand  in  the  absence  of  contract."     Wheeler 
case,    10  Colo.,   596;  see  also  opinion  of  Beck,  Ch.  J., 
Id.,  597. 

(m)  Contract  involved  in  Wheeler  case,  Id.  haec 
verba. 

52.  That  the  entire  contract  as  before  the  court, 
when  the  above  was  written  by  Justice   Helm,  may  be 
placed   at  the  service  of  the  profession,  I  have   taken 
from  the  files  of  this  case  (No.  1891)  in  the  office  of  the 
clerk  of  the  supreme  court,  pp.  9-14,  fols.  24-39,  °f  ^h^ 
printed   abstract,  which  contains  all  the  allegations  in 
the  said  petition  with   reference  to  the  contents  of  the 
said   contract,  and  they  are  verbatim  as  follows,  to-wit: 

(Fol.  24.)  Petitioner  further  represents  that  said 
company,  seeking  and  intending  to  wrongfully  and  un- 
lawfully oppress  your  petitioner,  as  well  as  divers  and 
sundry  other  citizens  owning  land  under  said  ditch,  and 
depending  thereon  for  water  for  irrigation,  has  caused 
to  be  drawn  up,  printed  and  written,  certain  contracts 


28  IRRIGATION    LAWS. 

so-called,  which  it  requires  your  petitioners,  and  others 
in  like  situation  with  him,  to  sign  as  one  of  the  condi- 
tions of  purchasing  the  right  to  use  (25)  water,  which 
said  contract  contains  requirements  and  conditions  of 
performance  on  the  part  of  those  so  needing  and  pur- 
chasing the  use  of  said  water,  and  envolving  certain 
forfeitures  of  rigjits  and  privileges  thereof,  of  the  most 
exacting,  unfair,  inequitable  and  unlawful  character,  in- 
somuch that  those  who  consent  to  sign  the  same,  know- 
ing their  terms  and  conditions,  are  forced  to  do  so  as 
the  sole  condition  upon  which  they  can  procure  water 
from  defendants  canal  and  cultivate  their  land.  Said 
contracts,  after  reciting  that,  in  consideration  of  the 
stipulations  (26)  therein  contained,  and  the  payments 
as  therein  specified,  the  said  company,  party  of  the  first 
part  agrees  to  sell  to  the  consumer  of  water,  the  party 
of  the  second  part,  "the  right  to  receive  and  use  water 
from  the  canal  of  the  first  party,"  for  irrigating  the  land 
described,  for  the  sum  of  money  named,  and  also  "upon 
the  further  payment  annually,  in  advance  on  or  before 
the  first  day  of  May  in  each  year  from  the  date  hereof, 
such  a  reasonable  rental  per  annum,  not  less  than  one 
dollar  and  a  half  per  acre,  and  not  more  than  four  dol- 
lars per  acre,  as  may  be  established  from  year  to  year  by 
the  first  party,"  and  after  setting  forth  several  enumer- 
ated (27)  rules  and  regulations,  more  or  less  reasonable, 
respecting  the  use  of  water  by  the  consumer  thereof, 
the  said  second  party,  said  contracts  thereafter  contain 
the  rules,  conditions  and  stipulations  as  follows,  to-wit: 

"Seventh — In  case  of  any  dispute  between  the  dif- 
ferent parties,  as  among  themselves,  to  the  use  of  water 
from  the  main  canals,  laterals  or  subsidiary  (28)  canals 
or  ditches  of  said  first  party,  the  same  shall  be  referred 
to  the  superintendent  of  said  first  party  and  his  decision 
shall  be  final  and  binding  upon  all  the  parties  in- 
terested. 

"Eighth — And  the  said  party  of  the  second  part,  for 
and heirs,  and  assigns  agree in  considera- 
tion aforesaid,  to  waive  and  hereby  do  waive  any  and 
all  claims  for  loss  or  damage,  by  reason  of  any  leakage, 
seepage  or  overflow,  from  any  canals  or  ditches,  or  from 


IRRIGATION    LAWS.  29 

any  reservoirs,  lakes  or  laterals  of  said  first  party,  either 
upon  the  land  aforesaid,  or  any  other  tract  belonging  to 

anything  in  any  statute,  law  (29)  or  custom  to  the 

contrary,  notwithstanding. 

"Ninth — And  the  said  party  of  the  first  part,  at  all 
times  hereafter,  shall  have  the  right  to  add  to,  and 
change  and  modify,  the  foregoing  rules  and  regulations, 
or  any  of  them,  so  far  as  may  be  reasonably  necessary  to 
regulate  the  delivery  and  distribution  of  water  to  said 
party  of  the  second  part, heirs  or  assigns. 

"And  it  is  hereby  agreed  and  covenanted  by  the 
parties  hereto,  that  time  and  punctuality  are  material 
and  essential  ingredients  of  this  contract,  and  in  case  the 

second  party, heirs  (30)  or  assigns,  shall  fail  to  make 

the  payments  aforesaid  and  each  of  them  punctually,  and 
upon  the  strict  terms  and  times  above  limited,  or  shall  fail, 
neglect  and  refuse  to  take  and  pay  rent  for  said  water  in 
accordance  with  the  contract  for  any  two  years  in  suc- 
cession, or  shall  fail  to  perform  and  complete  all  and 
each  of  said  agreements  and  stipulations  aforesaid 
strictly  and  literally,  without  any  failures  or  defaults, 
then  this  contract,  so  far  as  it  may  bind  the  first  party, 
shall  become  utterly  (31)  null  and  void,  and  all  rights 
and  interests  hereby  created  or  then  existing  in  favor  of 

ihe    second   party,   or  derived   from ,  shall    utterly 

cease  and  determine,  and  all  equitable  and  legal  inter- 
ests in  the  premises,  hereby  contracted  to  be  conveyed, 
shall  revert  to  and  revest  in  said  first  party  without  any 
declaration  of  forfeiture  or  act  of  re-entry,  or  any  other  act 
of  said  first  party  to  be  performed,  and  without  any 
right  of  said  second  party  of  reclamation  or  compensa- 
tion for  moneys  paid,  as  absolutely,  fully  and  perfectly 
as  if  this  contract  had  never  been  made. 

(32)  "In  case  the  second  party, legal  repre- 
sentatives or  assigns,  shall  pay  the  several  sums  afore- 
said punctually  and  at  the  time  above  limited,  then  the 
said  party  of  the  first  part  shall  (upon  request  at  the 
general  office  of  the  first  part  and  the  surrender  of  this 
contract)  execute  and  deliver  unto  the  said  party  of  the 
second  part,  heirs  or  assigns,  a  deed  conveying 


30  IRRIGATION    LAWS. 

the  right  to  use  the  water  herein  agreed  to  be  sold,  sub- 
ject, however,  to  all  of  the  conditions,  restrictions  and 
exceptions  hereinbefore  mentioned. 

"And  the  said  party  of  the  first  part  shall  have  the 
right  immediately,  or  at  any  time  thereafter,  upon  the 
failure  of  the  party  of  the  second  part  to  (33)  comply 
with  the  stipulations  of  his  contract,  to  refuse  and  to 
cease  to  supply  any  water  under  this  agreement.  And 
the  said  party  of  the  second  part  covenants  and  agrees 

that will  surrender  unto  the  said  party  of  the  first 

part  all  rights  or  interests  hereby  created  without  delay 
or  hindrance,  and  no  court  shall  relieve  the  party  of  the 

second  part, heirs  or  assigns,   from  the  failure  to 

comply  strictly  and  literally  with  this  contract. 

(34)  "And  it  is  further  stipulated  that  no  assign- 
ment of  this  contract,  or  sub-sale  of  the  premises,  shall 
be  valid  or  binding  on  the  said  party,  nor  shall  said  first 
party  be  bound  or  affected  by  any  notice,  actual  or  con- 
structive, by  record  or  otherwise,  of  any  such  assign- 
ment or  sub-sale,  unless  the  same  shall  be  made  by 
indorsement  thereon  or  permanently  attached  thereto, 
and  this  contract,  so  assigned,  be  presented  or  sent  to 
the  first  party,  and  the  assignment  or  sub-sale  approved 
by  the  first  party;  and  the  conveyance  of  said  premises 
by  the  first  party  to  said  purchaser,  or,  in  case  of  assign- 
ment (35)  or  sub-sale,  as  aforesaid,  to  the  assignee  named 
in  the  last  assignment  so  approved,  shall  be  deemed  to 
be  a  full  and  complete  performance  of  this  contract 
against  all  persons  claiming  any  title  to  or  interest  in 
said  premises,  under  or  by  virtue  of  this  contract,  and 
it  shall  be  within  the  power  of  the  first  party  to 
approve,  or  refuse  to  approve,  any  assignment  or  sub- 
sale  of  the  premises." 

Petitioner  further  represents  that  in  addition  to  all 
the  said  rules  and  conditions  and  the  water  rates  fixed 
and  demanded,  as  aforesaid,  the  said  company  (36) 
requires  as  a  condition  precedent  to  the  purchase  and 
use  of  said  water  by  petitioner  and  others  in  like  situa- 
tion that  they  shall  pay  to  said  company  as  a  bonus  or 
gift  a  certain  price  per  acre,  to  wit:  The  sum  of  from  ten 
to  thirty  dollars  per  acre  for  each  acre  of  land  upon 


IRRIGATION    LAWS.  31 

which  water  is  to  be  furnished  and  used,  for  the  privi- 
lege of  buying  and  using  said  water;  that  defendant 
gives  no  equivalent  or  consideration  for  such  bonus  or 
gift  so  demanded,  and  petitioner  represents  that  this  so- 
called  bonus  or  gift  is  in  effect  intended  to  be  simply  an 
invasion  of  the  law  of  the  land  and  the  rights  of  the 
water  (37)  consumers,  in  that  it  is  but  an  indirect  mode 
of  increasing  and  adding  to  the  lawful  and  reasonable 
price  of  the  water  as  otherwise  fixed  by  said  company, 
at  the  rate  of  a  certain  sum  per  cubic  foot,  and  paid  for 
at  such  established  rates  by  all  consumers,  forasmuch 
as  it  is  not  pretended  that  such  bonus  or  gift  demanded 
is  the  price  of  the  water  sold  and  consumed  at  fixed 
rates,  as  aforesaid,  nor  the  price  of  the  land  culti- 
vated, nor  rental  of  lands,  nor  repairs  of  the  ditch,  nor 
for  any  other  specific  article,  thing,  use  or  (38)  rightful 
purpose  whatever,  not  otherwise  paid  for;  but  petitioner 
avers  that  in  addition  to  all  other  requirements,  exac- 
tions, payments  and  conditions,  rightful  and  wrongful, 
demanded  of  consumers  of  water  by  said  company,  this 
so-called  bonus  or  gift  is  an  arbitrary,  extortionate, 
unjust  and  unlawful  exaction  for  a  right  and  privilege 
already  existing  and  otherwise  fully  paid  and  compen- 
sated for. 

Petitioner  states  further  and  admits  that  he  has 
hitherto  refused  and  still  refuses  to  pay  the  amount  de- 
manded as  a  bonus  or  gift  aforesaid,  for  the  reason  that 
he  believes  and  is  so  advised  that  the  demand  and 
exaction  of  such  bonus  or  gift  is  unlawful,  unreasonable 
and  without  any  right  whatever  on  the  part  of  said  com- 
pany in  the  premises. 

(39)  Petitioner  states  that  the  sum  demanded  of 
him  by  said  company  as  said  bonus  or  gift  is  the  sum 
of  $10  per  acre,  which  amounts  to  over  $2,200  for  the 
amount  of  land,  to  wit:  over  220%^  acres,  which  he 
desires  to  cultivate,  and  has  applied  for  water  as  afore- 
said. 

WATER   RIGHTS — IMPORTANCE. 

(«)  53.  Water  rights  have  always  been  justly 
regarded  as  one  of  the  most  important  subjects  dealt 


32  IRRIGATION    LAWS. 

with  in  the  legislation  and  jurisprudence  of  Colorado. 
Wheeler  v.  North  Colorado  Irrigation  Co.,  10  Colorado, 
586  (i! 


53  (a).  Adjustment  of  priorities  and  differences  of 
consumers  has  hitherto  received  chief  attention,  but 
thereafter  the  status  of  the  carrier  and  its  relations  with 
the  consumers  will  command  most  earnest  and  thought- 
ful consideration.  Id. 

CARRIERS,    CONSUMERS,    CO-CONSUMERS. 

(o)  54.  The  terms  ''carrier"  and  "consumer"  are 
used  as  meaning  the  canal  company  and  tiller  of  the 
soil,  respectively,  Id.;  Elliott,  J.,  in  Farmers'  H.  Iv. 
Canal  &  R.  Co.  v.  South  worth,  21  Pac.  Rep.,  1030 
(June  17,  1889);  13  Colo.,  132;  Helm,  J.,  in  Id,  119;  and 
in  this  last  case  Helm,  J.,  uses  the  term  "co-consumer" 
to  designate  those  consumers  taking  water  from  the 
same  artificial  stream. 

55.  Colorado   farmers,    with   few  exceptions,    are 
unable  to   convey  water  from  the  natural  streams  to 
their   land;    Wheeler   v.    North   Colorado    Irr.    Co.,  10 
Colo.,  586  (1888). 

56.  To  successful  cultivation  in  the  arid  region, 
the  carrier  and  consumer  are  equally  indispensible  ;  and 
the  rights  of  both  arc  to  be  protected  by  the  courts;  Id. 

CANAL   COMPANY   IS   COMMON   CARRIER,  NOT 
PROPRIETOR   OF   WATER. 

(/)  57.  The  status  given  the  carrier  of  water 
(canal  company)  is  exceptional-rdiffering  in  some  par- 
ticulars from  that  of  an  ordinary  common  carrier. 
Certain  peculiar  rights  are  acquired  in  connection  with 
the  water  diverted,  which  are  dependent  for  their  birth 
and  continued  existence  upon  the  use  made  by  the  con- 
sumer;  Id.  588;  Elliott,  J.,in  Farmers'  H.  L.  C.  &  R. 
Co.  v.  Southworth,  21  Pac.  Rep.,  1030;  n  Colo.,  131, 
(June  17,  1889.) 

58.  But,  giving  these  rights  all  due  significance, 
the  carrier  cannot  become  the  "proprietor"  of  the  water 


IRRIGATION    LAWS.  33 

diverted.     Wheeler  v.  North  Colo.    Irr.  Co.,   10  Colo., 

588  (1888). 

CANAL   COMPANY   IS   QUASI   PUBLIC   AGENT. 

(g)  59.  The  carrier  (canal  company)  under  the 
constitution  is  a  quasi  public  servant  or  agent;  Wheeler 
v.  North  Colo.  Irr.  Co.,  10  Colo.,  588  (1888). 

60.  It  is  permitted    to   acquire    certain   rights  as 
against   those   subsequently    diverting   water   from  the 
same   natural  stream.     It  -  may   exercise   the   right   of 
eminent  domain,  but  it  is  charged  with  certain  duties 
and  subject  to  reasonable  control;  Id. 

61.  The    carrier     (canal     company)     voluntarily 
engages  in  irrigation  enterprises,  and  in  most  instances, 
from  the  nature  of  things  has  a  monopoly  of  the  busi- 
ness along  the  line  of  its  canal;  Id. 

CANAL   COMPANY   CHARGED   WITH   A   PUBLIC  TRUST. 

(r)  62.  The  vocation  of  the  canal  company,  and  the 
use  of  its  property  are  closely  allied  to  the  public  inter- 
est; its  conduct  in  connection  therewith  materially 
affects  the  community  at  large — it  is  charged  with  what 
the  decisions  term  a  public  duty  or  trust;  Id.,  590. 

63.  Water  rates  must  be  reasonable — may  be  reg- 
ulated.    For  these  reasons  by  the  common  law,  even  if 
the  constitution  and  statutes  were  absolutely  silent  on 
the    question    of   charges   for   transportation,    and   the 
time  and  manner  of  their  collection,   it  must  be  held 
that  the  canal  company  has  submitted  itself  to  a  reason- 
able judicial   control,   invoked  and    exercised  for   the 
common  good  in  the  matter  of  regulations  and  charges, 
and  that  such  charges  must  be  reasonable;  Id.,  589-90. 

64.  If  a  canal   company   (carrier)  attempts  to  use 
its  monopoly  for  the    purpose   of  coercing  compliance 
with   unreasonable   and   exorbitant  demands,  it  invites 
judicial  interference;  Id.,  590;  Munn  v.  People,  94  U.  S. , 
113;  Price  v.  Riverside   L.  L.  Co.,  56  Cal.,  431;  C.  &  N. 
W.  R.  R.  Co.  v.  People,  56  111.,   365;  Vincent  v.  Chi.  & 
Alton  R.  R.  Co.,  49  Id.,  33. 

3-1.  I,. 


34  IRRIGATION    LAWS. 

65.  The  carrier   must  be  regarded  as  an  interme- 
diate agency,  existing  for  the  purpose  of  aiding  consum- 
ers in  the  exercise  of  their  constitutional  rights,  as  well 
as  private  enterprises,   prosecuted  for  the  benefit  of  its 
owners;  Wheeler  v.  North   Colo.    Irr.    Co.,  10  Colo.,  590 
(1888). 

66.  According  to  the  literal   terms  of  the  contract 
calling  for  $1.50  annually  and   $10.00  in  addition  (fols. 
26,  36  supra,  note  52),  the  $10.00  exaction  is  illegal;  Id., 


67.  Construction  claimed   for  contract.     It  is  said 
the  $10.00  per  acre  is  not  for  the  right  to  use  water,  but 
is  merely  a  portion  of  the  annual  "rental"  exacted  from 
customers  in  advance  for  the  remaining  ten  years  of  the 
canal    company's   existence;  that  instead  of  requiring, 
say,  $2.50  per  acre  for  each  irrigating  season  in  turn,  the 
canal  company  has  seen  fit  to  divide  this  sum  into  two 
parts,  collecting  $1.50  annually,  and  the  residue  of  $1.00 
each  for  the   remaining  ten  years  of  its  corporate  life, 
as  one  entire  sum  in  advance;  Id. 

68.  This  construction  of  the  contract  is  plausible, 
but  it  is  doubted  if  the  courts  could  accept  it.     Id. 

SUCH   A   CONSTRUCTION  WOULD   DENY  CONSUMERS  CON- 
STITUTIONAL  RIGHTS. 

(s)  69.  But,  if  accepted  the  position  is  not  tenable. 
If  in  the  absence  of  legislation  the  carrier  can  charge 
for  part,  it  can  charge  for  all  its  annual  transportation 
charges  in  advance  ;  and  if  the  company's  life  has 
twenty  years  to  run,  it  can  compel  payment  for  the  cost 
of  delivering  water  for  the  whole  twenty  years  before 
the  consumer  can  exercise  his  constitutional  right  during 
a  single  season,  and  he  may  not  want  the  water  for 
twenty  years,  and  may  not  be  able  to  advance  so  large  a 
sum  at  once.  To  say  consumers  must  do  so  or  have  no 
water,  is  to  deprive  them  of  their  constitutional  right  as 
effectually  as  though  the  right  itself  had  no  existence. 
Wheeler  v.  North  Colo.  Irr.  Co.,  10  Colo.,  591-2,  (1888.) 

70.  If  this  position  were  allowed,  the  consumer's 
right  in  section  6,  article  16  would,  in  the  absence  of 


IRRIGATION    LAWS.  35 

legislation,  be  subject  for  its  efficacy  to  the  greed  or 
caprice  of  a  single  individual  or  corporation.     Id.,  592. 

SUCH   CONSTRUCTION   UNJUST — OPPRESSIVE — NO    GUAR- 
ANTY THAT  COMPANY  WILL   LIVE   ITS 
STATUTORY  LIFE. 

(t)  71.  Such  position,  if  allowed  too,  would  con- 
summate a  most  unreasonable  and  unjust  discrimina- 
tion. Id. 

72.  The  consumers  who  pay  for  twenty  years  in 
advance,  have  no  assurance  that  the  carrier  will  keep  its 
engagement  during  that  period.     Id.,  594. 

73.  The  said  demand  of  $10  per  acre  as  an  advance 
payment  of  part  of  the  transportation  charge,  for  the 
remaining  years  of  its  corporate  life  is  illegal,  unreason- 
able and  oppressive.     Id.,  Beck,  C.  J.,  Id.,  597,  599. 

TIME   AND   CONDITION   OF     PAYMENT     TO    BE   FIXED    BY 

LEGISLATION — COUNTY    COMMISSIONERS 

FIX   AMOUNT. 

(#)  74.  Against  such  exaction,  the  consumer's 
only  remedy  is  not  by  application  to  the  county  com- 
missioners ;  they  can  fix  the  maximum  amount,  but  not 
the  time  or  conditions  of  payment.  Id.,  593. 

75.  Time  and  conditions  are  proper  subjects  for 
legislation.     The    legislature   might   provide   that   the 
maximum  rate  fixed  by  county  commissioners,  or  such 
lower  rate  as  the  carrier  might  charge,  should  be  paid 
annually  in  advance   for  such   irrigating  season,  or  it 
might  make  any  other  reasonable  regulations  in   these 
respects ;    but  neither  the   legislature  nor   the    carrier 
could   make   regulations  or  rules  by  which  the  canal 
company  could  accomplish  a  wholesale  discrimination 
between  consumers,   and  deny  to  a  majority  of  them,  if 
it  chooses,  the  rights  secured  by  the  constitution.    Id. 

76.  Had  there  been  a  statute  providing  a  method 
of  procedure  before  the   county  commissioners, 'where 
the  head  of  a  ditch  was  in  another  county  than  that  in 
which  plaintiff  resides,,  he  would  have  been  compelled 


36  IRRIGATION    LAWS. 

to  have  first  applied  to  said  commissioners,  before  he 
could  resort  to  the  courts,  but  there  was  no  such  statute. 
Id.,  599. 

TEN  DOLLARS  ROYALTY — VOID,  BUT  NOT  PER  SE. 
PRIOR  TO  ANTI-ROYALTY  ACT. 

(v)  77.  No  expenditure  in  building  ditches,  how- 
ever vast,  and  no  inconvenience,  however  great,  can  jus- 
tify or  legalize  the  said  exaction  of  $10.00  per  acre  as  an 
absolute  condition  precedent  to  use  water  for  the  cur- 
rent irrigating  season.  Wheeler  v.  North  Colo.  Irr.  Co., 
10  Colo.,  595  (il 


78.  But  the  consumer  must  object,  as  said  exaction 
is  not  illegal,  per  se.     Id. 

79.  If  the  consumer,  prior  to  1887  (the  anti-royalty 
act  was  not  passed  until  April  4,  1887,  L.  '87,  p.  308; 
same,  Mills'  Ann.   Stat,   1890,   sec.   2304),    voluntarily 
submitted  to  such  exactions,  both  the  legislature  and 
the  courts  may.  be  powerless  to  relieve  him   from  the  le- 
gitimate results  of  his  contracts;  Id.     But  Beck,  C.  J., 
says,  "Any  sum  charged  for  royalty  as  a  bonus  would 
be  unconstitutional."     Id.,  599. 

30.  A  large  portion  of  said  $10.00  may  have  been 
wholly  for  royalty,  gift  or  bonus,  but  the  record  does  not 
warrant  the  proposition  that  it  all  was,  and  that  the 
$1.50  was  alone  the  full  tranportation  charge.  Beck,  C. 
J-,  W.,  597- 

CONFUSING   EXPRESSIONS. 

(w)  8 1.  The  words  in  the  contract  "the  right  to 
use  water,"  etc.  (fol.  26),  are  open  to  criticism,  as  ap- 
pearing to  sell  a  right,  that  is  by  the  constitution  dedi- 
cated to  the  people  and  vested  in  the  public,  and,  there- 
fore, not  a  subject  of  sale;  but  the  constitution  in  article 
16,  section  8,  speaks  of  fixing  rates  "for  the  use  of 
water"  and  the  statutes  contain  the  expressions  "selling 
water,"  furnishing  water  for  sale,"  "purchasing  water," 
etc.,  Id.  598. 

(x)  82.  The  Southworth  case:  The  case  of  the 
Farmers'  High  Line  Canal  &  Reservoir  Co.  et  al.  v. 


IRRIGATION    LAWS.  37 

Southworth,  21  Pac.  Rep.,  1028,  13  Colo.,  in  (1889), 
was  a  suit  for  injunction  brought  by  Southworth  to  en- 
join the  said  company,  and  certain  consumers  whose 
priorities  were  alleged  to  be  junior  to  his,  from  prorat- 
ing (on  account  of  alleged  scarcity)  the  water  claimed 
by  plaintiff  under  right  of  priority,  pursuant  to  the  pro- 
rating statute  (Mills'  Ann.  Stat.,  1890,  sec.  2267)  Elliott, 
then  judge  of  the  district  court  of  Arapahoe  county, 
overruled  the  demurrer  filed  by  the  defendant  and  held 
the  complaint  stated  a  good  cause  of  action.  Defend- 
ant appealed  to  the  supreme  court;  separate  opinions 
were  filed  by  each  of  the  judges,  among  whom  was  now 
Judge  Elliott,  who  heard  the  case  below.  The  consti- 
tutional questions  involved  in  this  action  are  so  vital  and 
serious  that  I  shall  endeavor  to  show  the  present  status 
of  the  law,  by  setting  forth  the  separate  holdings  of 
each  of  the  justices. 

PLEADING   PRIORITIES. 

83.  Held,  by  Hayt,  J.,  that  the  complaint  was  in- 
sufficient because  while  it  alleged  the  priority  of  right 
in  plaintiff  to  the  appropriation  of  water,  such  allega- 
tion was  a  conclussion  of  law,  and  the  facts  of  diversion 
and  appropriation  to  a  beneficial  use,  which  constitutes 
such    priority,  should   have   been   specifically  alleged. 
Farmers'   High  Line   Canal  &  Reservoir  Co.  v.  South- 
worth,  13  Colo.,  115  (1889). 

84.  Elliott,  J.,  also  holds  the  same  (Id.,  130)  and 
that  the  complaint  should  have  alleged  that  plaintiff 
was   "accustomed  to  take  and  apply  the  water  without 
waiver  or  abandonment  to  his  crops  and  trees."    Id.  139. 
He  gives  an  ellaborate  discussion  on  the  merits,  how- 
ever, regardless  of  the  alleged  defects  in  the  complaint. 

85.  Helm,  C.  J. ,  denies  the  foregoing  propositions 
in'the  following  language:  "The  complaint  states  cer- 
tain   conclusions  of  law,  and   might   have  been   more 
artificially  drawn  in  other  respects;   but,  after  eliminat- 
ing these  legal  conclusions,  the  following  alleged  facts 
may,  I  think,  be  fairly   gathered    from  the   remaining 
averments,  viz:   That  defendant,  the   High  Line   Com- 
pany, is  a  corporation  duly  organized  under  the  laws  of 


38  IRRIGATION    LAWS. 

the  state,  and  is  doing  business  as  a  carrier  of  water; 
that  plaintiff  is  a  consumer  on  the  line  of  defendant's 
canal;  that  on  or  about  the  first  of  April,  1881,  plaintiff 
procured  water  through  the  defendant's  canal  to  irrigate 
his  land,  which  use  has  not  been  abandoned;  that  plain- 
tiff has  paid  and  defendant  has  accepted  the  charge  for 
transporting  to  him  during  the  season  of  1887  the  quan- 
tity of  water  he  has  previously  used;  but  that  defendant, 
there  being  a  probable  scarcity,  threatens  to  pro-rate, 
and  has  taken  steps  so  to  do,  the  diminished  quantity 
to  which  the  canal  will  be  entitled,  between  plaintiff 
and  certain  consumers  who  began  taking  from  defend- 
ant's canal  subsequent  to  the  said  first  day  of  April, 
1 88 1.  The  object  of  the  action  is  to  enjoin  such  pro- 
rating, and  compel  defendant  to  allow  plaintiff  the 
entire  quantity  heretofore  used  by  him,  regardless  of 
the  interests  of  those  co-consumers  whose  use  post- 
dates that  of  plaintiff,  and  regardless  of  the  command 
embodied  in  the  pro-rating  statute.  The  question 
which  I  shall  presently  state,  predicated  upon  the  fore- 
going alleged  facts,  is  fairly  presented  by  the  pleadings. 
This  view  was  taken  in  the  court  below,  and  the  ques- 
tion alluded  to  was  determined  on. its  merits.  Both 
parties  are  anxious  to  have  this  important  subject  of 
controversy  adjudicated  by  this  court  also,  and  I  shall, 
without  further  discussion,  assume  that  the  matters 
relied  on  are  sufficiently  stated,  and  proceed  to  show 
why  these  matters  do  not  constitute  a  cause  of  action." 
Southworth  Case,  13  Colo.,  117-18  (1889). 

INDIVIDUAL   PRIORITIES — "BETTER   RIGHT." 

(2)  86.  Held  by  Helm,  J.,  that  the  alleged  facts 
above  detailed,  which  were  admitted  by  the  demurrer  to 
be  true,  require  an  answer  to  the  following  question: 
Does  the  "priority  of  appropriation,"  which,  by  virtue 
of  the  constitution,  gives  the  better  right,  apply  to  indi- 
vidual consumers  taking  water  through  the  agency  of  a 
carrier,  so  that,  notwithstanding  the  pro-rating  statute, 
each  consumer  acquires  a  separate  constitutional  prior- 
ity of  right,  entitled  to  judicial  enforcement,  dating 
from  the  beginning  of  his  specific  use  ?  If  this  question 
be  answered  affirmatively  the  statute  is  void,  and  the 


IRRIGATION    LAWS.  39 

complaint  states  a  cause  of  action;  if  answered  in  the 
negative  the  statute  is  in  this  respect  valid,  and  the 
demurrer  should  have  been  sustained.  Id.,  119. 

He  answers    the    question  in   the  negative  in  an 
elaborate  opinion. 

87.  Hayt,  J.,  does  not   discuss   the  question  on  its 
merits,  but  observes:     "Under  same   circumstances,  dif- 
ferent users  of  water  obtaining  their  supply  through  the 
same  ditch,  may   have    different   priorities   of  right   to 
the  water;  that  appropriations  do  not  necessarily  relate 
to  the  same  time.     If  plaintiff  has  alleged  facts  showing 
that  he  has  a  prior  right  to  the  use  of  water,  which  the 
defendants  are  causing   to   be   pro-rated   among   those 
having  subsequent  rights,    the    demurrer   was  properly 
overruled,  otherwise  it  should  have  been   sustained  ;  " 
Id.  114, 

88.  Helm,  C.  J.,  further  says  :     "It  is  obvious  from 
the  foregoing  that   in   my  judgment   all    co-consumers 
taking  water  within  a  reasonable  time  have  priorities  of 
even  date  with  each  other,  and  the  question  propounded 
in  this  case  revolves  itself  into  the  following:     May  the 
legislature  provide  that  in  times  of  scarcity,  water  shall 
be  pro-rated  among  consumers   having  priorities  of  the 
same  date.      For  if  any  of  the  co-consumers  referred  to 
in  plaintiff's  complaint  did  not  use  the   water   claimed 
by  them  within  a  reasonable   time    from    the    date   of 
defendant's  diversion,  the  fact  was  material  and  should 
have  been  pleaded.     The  question  as  thus  re-stated  can 
receive  but  one  answer.     The   legislative  right  to  pro- 
vide this,  as  well   as  all    other   reasonable   regulations, 
not  obnoxious  to  constitutional    objections,  for  the  use 
and   distribution    of  water   cannot  be  denied;"  South- 
worth  case,  13  Colo.,  121  (1889). 

Hayt,  J.,  says  that  if  this  were    the  question  that  it 
could  have  but  one  answer;  Id.  116. 

89.  Helm,  C.  J.,  in  the  following   language  states 
that  his  views  are  not   adopted    by    his   associates  :     "I 
would  conclude  this  opinion  here  were  it  not  that  others, 
including  one  of  my  colleagues  on  the  bench,  are  firmly 


4°  /     iT        IRRIGATION   LAWS. 


conviurapd  Vnat  the   foregoing   construction  of  the  con- 
stitimoijiUs  unsound.     They  contend   that  the  constitu- 
tjon^g^arantees  to  each  consumer  a  priority  dating  from 
Ltnencement  of  his  individual  use.    The  carriers' 
i   r~  diversion,  say  they,  has  nothing  to  do  with  the 

I      oonsumers  priority;  it  is  as  if  ^the   consumer  at  the  date 
\    fct£>Ahis  use,  made  a  distinct  and   independent   diversion 
\  from  the  natural  stream,  merely  employing  for  the  pur- 
pose    the  carrier's  canal;   and  upon  this   constructive 
diversion  rests  the  superstructure  of  their  theory  regard- 
ing the  consumer's  appropriation  and  priority;"  Id.  124. 

90.  Elliott,  J.,  says:  "The  question  under  consid- 
eration may  be  stated  thus:  Does  the  'priority  appropri- 
ation,' which  the  constitution  declares  'shall  give  the 
better  right  as  between  those  using  the  water  for  the 
same  purpose,'  apply  to  the  individual  consumer  taking 
the  water  through  the  agency  of  an  artificial  stream,  or 
is  it  limited  to  those  taking  water  directly  from  the  nat- 
ural stream?  The  appropriation  of  water,  within  the 
meaning  of  the  constitution,  consists  of  two  acts — first, 
the  diversion  of  the  water  from  the  natural  stream;  and, 
second,  the  application  thereof  to  beneficial  use.  These 
two  acts  may  be  performed  by  the  same  or  different  per- 
sons, but  the  appropriation  is  not  complete  until  the 
two  are  conjoined.  Hence,  when  the  acts  are  performed 
by  different  persons  at  different  times;  it  becomes  neces- 
sary to  determine  which  is  the  essential  act  to  which 
the  'better  right'  attaches.  It  will  be  observed  that  by 
the  express  language  of  the  consitution,  the  'better 
right'  is  guaranteed  'as  between  those  using  the  water 
for  the  same  purpose.'  The  different  purposes  specified 
are  domestic,  agricultural  and  mechanical.  Whether 
there  are  other  purposes  not  specified  need  not  now  be 
discussed.  Can  the  carrier  of  water  for  hire  be  said  to 
he  using  the  water  in  the  sense  spoken  of  in  the  consti- 
tution? The  railroad  company  which  carries  farming  im- 
plements from  the  great  manufactories  of  the  east  to  supply 
the  farmers  residing  upon  the  broad  prairies  of  the  west 
can  hardly  be  said  to  be  using  such  implements  by  the 
mere  act  of  thus  transporting  them.  From  the  specifi- 
cation of  the  purposes  for  which  the  water  may  be  used 
it  would  seem  that  the  'better  right'  which  attaches  to 


IRRIGATION    LAWS.  41 

the  priority  of  appropriation  was  primarily  intended  for 
the  benefit  of  those  who  apply  the  water  to  the  cultiva- 
tion of  the  soil  or  other  beneficial  use,  rather  than  for 
the  benefit  of  those  engaged  in  diverting  and  carrying 
it  to  be  used  by  others.  The  diversion  and  carriage  of 
water  in  point  of  time  are  necessarily  prior  to  the  appli- 
cation of  it  to  agricultural  or  other  useful  purposes,  but 
they  are  subordinate  in  point  of  right.  The  former  are* 
to  the  latter  as  the  means  to  the  end,  and  end  without 
which  neither  the  diversion  nor  the  carriage  would  be 
lawful.  The  carrier  is  the  agent,  the  consumer  is  the 
principal.  The  former  can  lawfully  pursue  his  occupa- 
tion only  by  virtue  of  the  service  he  renders  to  the  lat- 
ter. The  consumer's  riglit  is  primary  and  unconditional; 
the  carrier's  is  secondary  and  dependent."  South  worth 
case,  13  Colo.,  130-1  (1889). 

APPROPRIATION — NATURAL   OR   ARTIFICIAL   STREAM. 

(ad)  91.  Held  by  Helm,  C.  J.,  that  "The  consti- 
tution recognizes  priority  only  among  those  taking 
water  from  natural  streams.  The  consumer  himself 
makes  no  diversion  from  the  natural  stream.  The  act 
of  turning  water  from  the  carrier's  canal  into  the  con- 
sumer's lateral  cannot  be  regarded  as  a  diversion  within 
the  meaning  of  the  constitution  ;  nor  can  this  act  of  it- 
self, when  combined  with  the  use,  create  a  valid  consti- 
tutional appropriation.  There  is,  therefore,  no  escape 
from  the  conclusion  hitherto  announced  by  the  court, 
that  in  cases  like  the  present  the  carrier's  diversion  from 
the  natural  stream  must  unite  with  the  consumer's  use 
in  order  that  there  may  be  a  complete  appropriation 
within  the  meaning  of  our  fundamental  law."  South- 
worth  case,  13  Colo.,  120  (1889). 

92.  Held  by  Elliott,  J.,  that  "A  reference  to  sec- 
tions 5  and  6,  article  16,  will  show  that  it  is  the  water 
of  natural  streams,  irrespective  of  the  mode  of  diversion, 
that  is  dedicated  to  the  use  of  the  people,  subject  to 
appropriation  ;  and  priority  of  right  thereto  is  made  to 
depend  upon  the  time  of  using  the  water  for  beneficial 
purposes,  and  not  upon  the  fact  of  taking  the  water 
from  the  natural  stream.  Indeed,  the  word  u  from " 
does  not  appear  in  either  of  the  foregoing  sections.  But 


42  IRRIGATION    LAWS. 

it  is  not  necessary  to  rely  upon  mere  verbal  analysis  to 
sustain  the  consumer's  priority  of  right  based  upon 
priority  of  use.  Every  consumer  cannot  take  the  water 
directly  from  the  natural  stream.  Irrigating  ditches 
and  canals  must  be  resorted  to  as  a  means  of  diverting 
and  carrying  the  water  to  places  where  it  can  be  bene- 
ficially applied.  No  good  reason  can  be  urged  why  a 
consumer  obliged  to  make  use  of  such  an  agency  should 
not  be  protected  equally  with  those  taking  water  directly 
from  the  natural  stream."  Id.,  131. 

PRO-RATING  STATUTE  APPLIES  TO   EQUAL  PRIORITIES- 
DITCH  DECREES   AS   POLICE   REGULATIONS. 

(bb)  93.  Held  by  Elliott,  J.,  "That  section  4  of  the 
act  of  1879  (General  Statutes,  section  1722;  same,  Mills' 
Annotated  Statutes,  1890,  section  2267),  provides  for 
pro-rating  the  water  actually  received  into  and  carried 
by  any  irrigating  ditch,  canal  or  reservoir  among  all  the 
consumers  therefrom  in  time  of  scarcity,  so  that  all  such 
consumers  shall  suffer  proportionately  from  the  de- 
ficiency of  water. 

This  provision  may  be  properly  carried  into  effect 
when  the  rights  of  all  the  consumers  are  equal  in  the 
matter  of  their  respective  appropriations,  as  when  a 
ditch  has  been  constructed  as  a  common  enterprise  by 
and  for  the  mutual  and  equal  benefit  of  all  the  con- 
sumers therefrom,  or  when  by  reason  of  contractual 
relations,  waiver  or  other  circumstances,  certain  con- 
sumers stand  on  a  footing  of  substantial  and  practical 
equality,  having  no  priority  of  appropriation  one  over 
another.  Schilling  v.  Rominger,  supra. 

In  Dorr  v.  Hammond,  7  Colo.,  83,  i  Pac.  Rep.,  693, 
it  is  held  that  a  consumer  may  forfeit  his  priority  of 
right  to  the  use  of  water  by  abandonment  through  non- 
user  ;  but  where  it  appears  as  a  matter  of  fact  that  one 
person  has  been  accustomed,  in  a  lawful  manner, 
through  the  agency  of  an  artificial  stream  or  otherwise, 
to  take  and  apply  the  unappropriated  waters  of  a  natu- 
ral stream  to  proper  beneficial  use,  without  waiver  or 
abandonment,  from  a  period  antedating  such  taking  and 
use  by  others,  then  to  the  extent  of  such  prior  taking 


IRRIGATION   LAWS.  43 

and  use,  a  prima  facie  priority  is  established,  and  the 
statutory  regulation  for  pro-rating  must  give  way  to  the 
4 'better  right"  acquired  by  such  priority  of  appropria- 
tion under  the  constitution ;  and  such  priority  must  be 
respected  by  the  ditch  company,  its  officers  and  mana- 
gers, and  all  others  in  any  way  connected  therewith. 

Giving  said  section  4  a  literal  and  unqualified  inter- 
pretation, and  it  manifestly  conflicts  with  the  constitu- 
tion. Besides,  as  we  have  seen,  the  uniform  decisions  of 
this  court  plainly  indicate  the  rule  to  be  that,  as  between 
those  using  the  water  of  natural  streams  for  the  same 
beneficial  purpose,  priority  of  use,  gives  superiority  of 
right  irrespective  of  the  mode  of  diversion. 

A  single  illustration  will  suffice  to  show  the  disas- 
trous consequences  which  would  ensue  if  the  pro-rating 
statute  should  be  made  the  rule  for  the  distribution  of 
water  for  purposes  of  irrigation,  instead  of  the  rule 
of  priority.  An  irrigating  ditch  is  constructed,  the  first 
and  only  one  taking  water  from  a  small  natural  stream. 
The  first  year  five  consumers  apply  for  and  receive  each 
one  hundred  inches  of  water  for  the  irrigation  of  their 
lands ;  the  next  year,  the  ditch  being  enlarged,  five 
more  apply  and  receive  a  like  quantity,  and  the  third 
year  five  more,  and  so  on  successively,  until  thirty  or 
forty  consumers  are  located  under  the  ditch.  Perhaps 
the  first  five  might  be  required  to  pro-rate  with  each 
other  in  time  of  scarcity  should  their  appropriations  be 
practically  equal  in  point  of  time  ;  but  under  the  statute 
the  first  five  would  also  be  compelled  to  pro-rate  with 
all  subsequent  consumers,  until  the  amount  of  water 
that  each  would  receive  would  be  so  infinitessimally 
small  as  to  be  of  no  practical  value,  and  would  be 
eventually  entirely  wasted  before  it  could  be  applied." 
Southworth  case,  13  Colo.,  135,  etc. 

94.  Held  by  Helm,  C.  J.,  that  the  said  pro- rating 
statute  u  reaches  all  consumers  having  secured  priorities 
through  diversion  by  carriers  alike.  It  makes  no  dis- 
tinction among  them.  Bach  and  all  are  equally  within 
its  purview.  This  is  purely  a  question  of  constitutional 
construction,  and  the  constitutional  meaning  does  not 
seem  to  be  obscured  by  any  serious  ambiguity  ;  but  were 


44  IRRIGATION    LAWS. 

the  meaning  doubtful,  the  argument  based  upon  supposed 
hardship  and  injustice,  is  in  my  judgment,  not  entitled 
to  notice.  It  is  true  the  consumer,  who  first  uses,  may 
be  compelled  to  pro-rate  with  another  whose  use  is  sub- 
sequent in  date,  but  each  consumer  has  a  perfect  right 
to  go  to  the  natural  stream  for  the  water  he  needs. 
There  is  no  law  forcing  him  to  deal  with  the  carrier.  It 
is  no  answer  to  say  that  the  over-powering  law  of  neces- 
sity takes  away  his  volition  to  choose,  for  he  in  fact 
makes  his  election  when  he  purchases  land  so  far  from 
the  natural  stream  as  to  compel  reliance  upon  the  car- 
rier. But  when  he  elects  to  take  from  the  carrier's 
canal,  and  thus  to  employ  this  lawful  agency  he  cannot 
reject  the  accompanying  lawful  obligations.  The  legis- 
lature is  powerless  to  say  that  he  shall  not  take  unap- 
propriated water  from  the  natural  stream  ;  but  that  body 
can  declare  that  if  he  employs  the  services  of  a  carrier 
he  shall  take  notice  of  and  be  governed  by  such  valid 
regulations  as  have  been  adopted,  pertaining  to  the  dis- 
tribution of  water  therefrom.  Under  the  constitution, 
statutes  and  decisions  as  I  read  them,  the  consumer 
takes  with  full  knowledge  that  the  carrier's  entire  diver- 
sion will  ripen  into  valid  appropriations,  provided  the 
water  be  applied  within  a  reasonable  time  to  beneficial 
uses.  He  also  takes  with  knowledge  that  the  different 
lawful  co-consumers  will  have  the  same  priority,  a  pri- 
ority resting  for  its  commencement  upon  the  carrier's 
diversion,  or  dating  from  a  subsequent  enlargement  of 
the  quantity  of  water  to  which  the  carrier  was  originally 
entitled.  He  must,  therefore,  be  presumed  to  know  that 
in  times  of  scarcity  his  use  may  be  subjected  to  two 
interruptions,  viz.:  first,  that  canals  and  ditches  holding 
priorities  antedating  the  diversion  of  his  carrier  may 
demand  all  the  water  in  the  natural  stream,  so  that  there 
will  be  none  for  him  or  any  of  his  co-consumers  ;  and 
second,  that  if  there  is  water,  but  not  the  full  quantity 
appropriated,  he  will  be  obliged  to  pro-rate  with  such 
co-consumers.  Under  these  circumstances  the  consumer 
is  hardly  in  position  to  resist  the  enforcement  of  the  pro- 
rating statute,  or  to  assert  that  it  operates  harshly  and 
unjustly  upon  him."  Southworth  case,  13  Colo.,  122-3. 


IRRIGATION   LAWS.  45 

95.  Held  by  Elliott,  J.,  "That  the  objects  and  pur- 
poses of  the  acts  of  1879  and   1881,   providing  for  the 
adjudication  of  priorities,  (L.   '79,  p.  94,  etc.;  L.  '81,  p. 
142,  etc.;  same  Mills'  Ann.  Stat.  1890,   sees.  2399-2439,) 
is,  by  way  of  police  regulations,   to  secure  the  orderly 
distribution  of  water  for  irrigation  purposes,  and  to  pro- 
vide a  system  of  procedure  for  determining  the  priority 
of  rights  as  between  the  carriers,  or  strictly  speaking, 
priority  of  diversion  as  between  themselves.     They  are 
using  the  water  "  for  the  same  purpose  and  by  analogy 
may  be  termed  'appropriators'  or  'quasi  appropriators.' 
These  acts  are  to  protect  their  rights  and  to  prevent  the 
inevitable  conflicts  that  would  occur  if  diversion  from 
the  natural  stream  were  not  under  government  control." 
Id.,  134,  etc. 

96.  Held  by  Helm,  J.,  that  the  foregoing  theory  as 
to  the  purpose  of  the  acts  of  1879  an<^  1881,  reads  well, 
but   its   practical    application    is  not   feasible,    and  its 
results  in  making  all  the  said  acts  worse  than  useless  if 
not  void.     Id.,  127. 

Section  512.  Right  of  way  for  ditches,  flumes. 
Sec.  7.  All  persons  and  corporations  shall  have  the 
right  of  way  across  public,  private  and  corporate  lands 
for  the  construction  of  ditches,  canals  and  flumes,  for 
the  purpose  of  conveying  water  for  domestic  purposes, 
for  the  irrigation  of  agricultural  lands,  and  for  mining 
and  manufacturing  purposes,  and  for  drainage,  upon 
payment  of  just  compensation. 

Section  513.  County  commissioners  fix  rates  for 
water.  Sec.  8.  The  general  assembly  shall  provide  by 
law  that  the  board  of  county  commissioners  in  their  re- 
spective counties,  shall  have  power,  when  application 
is  made  to  them  by  either  party  interested,  to  establish 
reasonable  maximum  rates  to  be  charged  for  the  use  of 
water,  whether  furnished  by  individuals  or  corpora- 
tions. 

COLORADO   DECISIONS   AND   CITATIONS. 

2.  This  section  referred  to;  Knoth  v.  Barclay,  8 
Colo.,  303  (1885). 


46  IRRIGATION    LAWS. 

3.  Agriculture  in  Colorado  depends  on  irrigation; 
Yunker  v.  Nichols,  i  Colo.,  553  (1872). 

(a)      STATEMENT  OF  YUNKER-NICHOLS  CASE — STATUTE 
OF   FRAUDS. 

«  4.  This  was  an  action  of  trespass  brought  by 
Yunker  v.  Nichols,  because  the  latter  living  higher  up 
on  a  ditch  built  by  their  joint  labor,  appropriated  all  the 
water  in  such  ditch  to  his  own  use  while  the  same  was 
flowing  over  his  own  land,  and  left  no  water  in  the 
ditch  to  flow  on  to  plaintiff's  lands,  by  means  whereof 
the  plaintiffs  growing  crop  was  greatly  injured  and 
diminished  in  value.  The  case  was  reversed  by  the 
supreme  court,  because  the  jury  was  instructed  that  if 
Yunker's  right  to  have  the  water  flow  on  to  his  land 
through  a  ditch  over  the  land  of  Nichols  was  conferred 
only  by  verbal  agreement  and  never  reduced  to  writing, 
as  required  by  the  statute  of  frauds,  the  plaintiff  could 
not  recover;  Id.  552. 

5.  In  England  and  in  this  country  it  is  considered 
that  the  right  of  one  person  to  conduct  water  over  the 
land  of  another  is  an  interest  in  real  estate  which  must 
be  conveyed  by  deed  in  compliance  with  the  statute  of 
frauds.     Hallett,  J.,  in  Id.,  552. 

6.  But  in  Colorado  and  the  arid  region  all  lands 
are    held   in  subordination   to   the   dominant  right  of 
others,  who  must  necessarily  pass  over  them  to  obtain  a 
supply  of  water  to  irrigate  their  own  lands,  and  this 
servitude  arises  not  from  grant,  but  by  operation  of  law. 
A  deed  to  a  right  of  way  for  such  irrigating  ditch  is  not 
necessary.     Id.,  555. 

7.  Under  these  principles  consent  to  build  a  ditch 
gives  a  right  of  way,  and  if  consent  is  withheld  a  party 
can  proceed  under  the  statute.     Id. 

EXECUTED   LICENSE — REVOCABLE   OR   IRREVOCABLE. 

(b)  8.  The  states  of  Ohio  and  Pennsylvania  (Wil- 
son v.  Chalfant,  15  Ohio,  253;  Wents  v.  De  Haven,  i 
Serg.  &  R.,  312)  adhered  strictly  to  the  doctrine  of  the 
irrevocability  of  an  executed  license,  while  in  all  other 


IRRIGATION    LAWS.  47 

states,  as  well  as  in  England  (Wood  v.  Leadbitter,  13  M. 
&  W.,  838),  such  licenses  have  been  held  revocable  at 
will,  being  in  contravention  of  the  statute  of  frauds;  but 
the  Ohio  and  Pennsylvania  rule  is  followed  there  as  the 
more  equitable,  thus  preventing  the  statute  of  frauds 
from  being  fraudulently  and  oppressively  used,  and  this 
was  also  formerly  the  rule  in  Maine,  New  Hampshire, 
Iowa  and  Indiana.  Belford,  J.,  in  Id.,  558-565;  Ricker 
v.  Kelly,  i  Greenl.,  117;  Pitmandy  Poor,  38  Me.,  237; 
Woodbury  v.  Parshley,  7  N.  H. ,  237;  Ameriscoggin 
Bridge  v.  Bragg,  n  Id.,  108;  Sampson  v.  Burnside,  13 
Id.,  264;  Houston  v.  Laffer,  46  Id.,  507;  Wickersham  v. 
Orr,  9  Iowa,  260;  Beatty  v.  Gregory,  17  Id.,  109;  Snow- 
den  v.  Wilds,  19  Ind.,  14. 

ESTOPPEL    AS    APPLIED  TO   AN    EXECUTED    LICENSE   TO 
BUILD   A   DITCH. 

(c)  9.  The  irrevocability  of  such  an  executed 
license  in  the  building  of  an  irrigating  ditch  is  also 
deducted  from  the  doctrine  of  estoppels  in  pais.  He 
who  by  his  conduct  or  admissions  induces  another  to 
act  cannot  afterward  be  permitted  to  assert  the  contrary 
to  the  injury  or  prejudice  of  the  party  who  has  already 
acted  upon  the  faith  and  in  the  belief  created  by  him. 
Belford,  J.,  in  Yunker  v.  Nichols,  i  Colo.,  652  (1872); 
Wells,  J.,  dissents  as  to  this  point;  Id.,  569;  contra, 
Stewart  v.  Stephens,  10  Id.,  446-8  (1887);  .  compare 
Burnham  v.  Freeman,  n  Id.,  606  (i<  " 


10.  The  above  principal  of  estoppel  in  pais  applies 
to  the  case  of  an  irrigating  ditch,  which  is  an  interest 
or  easement  in  land,  the  same  as  the  private  way  over 
the  land  of  another.  Belford,  J.,  in  Yunker  v.  Nichols, 
i  Colo.,  562-568  (1872).  This  principle  extends  to  real 
estate  and  affects  the  title  thereof  as  well  as  to  person- 
ality. Id.;  Hern  v.  Rogers,  9  B.  &  C.,  577;  Farr  v. 
Newman,  4  D.  &  E.,  636;  Smith  v.  Doe,  7  Price,  509; 
Shaw  v.  Bebee,  35  Vt,  208;  Wents  v.  De  Haven,  i 
Serg.  &  R.,  312;  Corbet  v.  Norcross,  35  N.  H.,  115; 
Heard  v.  Hall,  16  Pick.,  457;  White  v.  Perkins,  24  Id., 
324;  Sharan  v.  Mennick,  6  Nev.,  389;  Kelly  v.  Taylor, 
ii. 


48  IRRIGATION    LAWS. 

ii.  Courts  would  betray  their  trust  if,  in  the 
administration  of  law,  or  the  expounding  of  the  consti- 
tutional principles,  they  shut  their,  eyes  and  refuse  to 
recognize  those  conditions  of  society  which  call  into 
force  and  operation  principles  whose  existence  and 
recognition  cannot  be  disregarded  without  bringing  ruin 
on  all;  Belford,  J. ,  in  Yunkers  v.  Nichols,  i  Colo.,  569 
(1872). 

DITCH — RIGHT     OF     WAY,     NOT      FROM     STATUTE     BUT 
FROM    NECESSITY. 

(d)  12.     The  right  of  every   proprietor  to  have  a 
way  over  the  lands  intervening  between  his  possessions 
and  the  neighboring  stream   for   the  passage  of  water 
for  irrigation  of  so  much  of  his  land  as  may  be  actually 
cultivated,  is  well  sustained  by    force    of  the    necessity 
arising  from  local  peculiarities  of  climate.      This  right 
springs   out  of  the  necessity,   and   existed   before   the 
statute  (L.  '61,  p.  67;  same  R.  S.,  68,  p.  363;  same  Mills' 
Ann.  Stat,  1890,  sec.  2257)  was. enacted  and  would  still 
survive  though   the  statute  was  repealed.     Dissent  is 
ent%red  to  the  deduction  of  such  right  from  the  statute; 
Wells,  J.,  in  Yunkers  v.  Nichols,  i  Colo.,  570  (1872). 

13.  Thatcher,  C.  J.,  says  that   the  right  to  convey 
water  over  the  lands  of  another,  for  irrigating  purposes, 
is  founded  on   the  imperious  law  of  nature,  to  which,  it 
must  be  presumed,  the  government  parts  with  its  title; 
Schilling  v.  Rominger,  4  Colo.,  109  (1878). 

14.  This  servitude  over  the  lands  of  another  may, 
therefore,  be  created  otherwise  than  by  deed;  Id. 

THERE   MUST   BE   COMPENSATION    FOR    RIGHT   OF   WAY. 

(e)  15.     The  constitution  was  adopted  since  the 
above  decision  of  Yunker   v.    Nichols  was  made,   and 
this  section  and  art.  2,  sees.  14  and  15  prohibit  the  tak- 
ing of  private  property  for  private  use  without  compen- 
sation; and  as  shown  in  Tripp  v.  Overocker,  7  Colo.,  73, 
the  legislature  has  provided   the   proceedings  by  which 
private   property   may   be    subjected    to    private    use; 
Stewart  v.  Stephens,  10  Id.,  445-6  (1887). 


IRRIGATION   LAWS.  49 

16.  Under  this  section  and  also  Mills'  Ann.  Stat, 
1890,  sec.  2257-8,  a  party  is  given  a  right  of  way  for  a 
ditch  over  the  lands  of  another  upon  the  payment  of 
just  compensation  therefor;  Tripp  v.  Overocker,  7  Colo., 
73  (1883);  Burnham  v.  Freeman,  n  Id.,  607  (ii 


17.  Sec.  1716,  G.  S.,  1883  (same  Mills'  Ann.  Stat, 
1890,  sec.  2261)  is  not  in   conflict   with   this   section  of 
the  constitution,  for  it  recognizes  the  right  of  way  for 
ditches  and  seeks  only  to  regulate  the  exercise  of  such 
right  so  as  to  inflict  the  least  possible  injury  and  incon- 
venience upon  the  owner  of  the  servient  estate;  Tripp 
v.  Overocker,  7  Colo.,  73  (1883). 

1 8.  The   right  of   a  purely  private   party  to   con- 
demn a  right  of  way  for  a  ditch  to  convey  water  to  his 
lands  for  domestic,  agricultural  and  mining  purposes  is 
guaranteed  by  this  section,  and  section    14,  article  2; 
the  statute  regulates  the  manner  of  exercising  the  right. 
Id.  Downing  v.  More,  12,  Colo.,  318  (1888). 

19.  The  latter  case  modifies  the  former,  but  not 
as  to  this  or  any  constitutional  point. 

20.  As  to  the  right  of  way  for  ditch,  see  Knoth  v. 
Barclay,  8  Colo.,  303  (1885),  in  note  to  article  2,  section 
I5- 

RIGHT  TO   CONDEMN    USE '  OF   DITCH   CONSTRUCTED. 

(f)  21.  A  party  having  the  right  to  the  use  of 
water,  can  condemn  a  right  of  way  for  his  ditch,  or  con- 
demn the  right  to  use  the  one  already  constructed. 
Burnham  v.  Freeman,  n  Colo.,  607  (1888). 

22.  An  interest  in  an  irrigating  ditch  is  realty  and 
cannot  pass  by  a  verbal  sale.  Id.,  606  (1888);  Smith  v. 
O'Hara,  43  Cal.,  371. 

Section  513.  County  commissioners  fix  rates  for 
water.  Sec.  8.  The  general  assembly  shall  provide  by 
law  that  the  board  of  county  commissioners,  in  their 
respective  counties,  shall  have  power,  when  application 
is  made  to  them  by  either  party  interested  to  establish 
reasonable  maximum  rates  to  be  charged  for  the  use  of 
water,  whether  furnished  by  individuals  or  corpora- 
tions. 

4—1.  L. 


5<D  IRRIGATION   LAWS. 

1.  Water  rates  fixed  by  county  commissioners,  see 
Mills'  Ann.  Stat,  1890,  sections  570,  2295,  2298. 

I.      COLORADO   DECISIONS  AND   CITATIONS. 

2.  Farmers  are  generally  too  poor  to  build  main 
ditches  of  their  own,  hence  individuals  and  corporations 
engage  in  the  business  of  building  and  operating  these 
mains  and  furnishing  water  to  the  farmers  along  the  lines 
thereof.     If    these   persons   and   corporations  were   en- 
tirely uncontrolled  in  the  matter   of    prices,    injustice 
and   trouble  would   follow.      It   is   exceedingly  proper 
they  should  be  subjected  to  reasonable  regulations,  as 
provided  in  this  section  of  the  constitution.     Golden 
Canal  Co.  v.  Bright,  8  Colo.,  148  (1884). 

3.  The  price  to  be  charged  is  involved  in  the  regu- 
lations of  the  use  of  water.     Id.,  149. 

4.  While  it  is  true  there  is  opportunity  for  gross 
injustice  to  the  ditch  owner  or  the  consumer,  if  an  ap- 
peal is  not  allowed  from  the  decision  of  the  county  com- 
missioners, fixing  maximum  rates,  still,   as  a  matter  of 
fact,   the  act  (L,.    '79,  p.  94,  etc.)  does  not  provide  for 
such  appeal,  nor  does  any  other  act.     Id.,  155. 

CANAL   COMPANY,    RIGHT  TO    CARRY   FOR   HIRE   RECOG- 
NIZED. 

(a)  5.  This  section  unquestionably  contemplates 
and  sanctions  the  business  of  transporting  water  for  hire 
from  natural  streams  to  distant  consumers.  Wheeler  v. 
North  Colo.  Irr.  Co.,  10  Colo.,  588  (1887). 

6.  The  board  of  county  commissioners  are  a  judi- 
cial or  quasi-judicial  tribunal  when  fixing  the  rates  un- 
der this  section.     Id.,  589. 

7.  By  the  common  law,   even  if  the  constitution 
and  statutes  were   absolutely  silent  on  the  question  of 
charges  for  transportation,  and  the  times  and  manner  of 
their  collection,  the  same  must  be  reasonable,  and  they 
are  subject  to  reasonable  judicial  control.    Id.,  589-90. 

8.  The  enforcement  on  the  part  of  a  canal  com- 
pany of  unreasonable  and  oppressive  demands,  in  rela- 


IRRIGATION   LAWS.  51 

tion  to  the  time  and  manner  of  collecting  rates,  is  by 
fair  implication  forbidden  by  this  section.    Id.,  590. 

9.  For   the   fixing   of  maximum  rates  would  be 
grossly  inadequate  protection,  if  either  party  might  dic- 
tate absolutely  the  time  and  condition  of  payment.     Id. 

10.  The  primary  objects  of  this  section  were  to 
encourage  and  protect  the  beneficial  use  of  water;  and, 
while  recognizing  the  carrier's   right  to  a  reasonable 
compensation  for  its  carriage,  collectable  in  a  reasonable 
manner,  the  constitution  also  unequivocally  asserts  the 
consumer's  right  to  its  use,  upon  payment  of  such  com- 
pensation.    Id. 

11.  Any  unreasonable  regulations  or  demands  that 
operate  to  withhold  or  prevent  the  exercise  of  this  con- 
stitutional right  by  the  consumer  must  be  held  illegal, 
even  though  there  be  no  express  legislative  declaration 
on  the  subject.     Id. 

12.  When  the  canal  company  has  fixed  a  rate  of 
its  own,  with  which  the  consumer  is  satisfied,   it  is  not 
necessary  to  apply  to  the  county  commissioners  to  fix 
the  rate;  and  G.   S.,  '83,  sec.  311,  (same  Mills'   Ann. 
Stat,  1890,  sec.  570,)  must  be  so  understood.     Id.,  595. 

13.  Against  illegal  exactions  the  consumer's  only 
remedy  is  not  by  application  to  the  county  commission- 
ers to  fix  the  rates.     They  can  fix  the  maximum  amount, 
but  not  the  time  or  conditions  of  payment;  the  legisla- 
ture may  fix  the  latter.     Id.   ' 

Quotations  from  constitution  end  here. 


STATUTES. 

Section  570.  When  compelled  to  furnish  water. 
Any  company  constructing  a  ditch  under  the  provisions 
of  this  act  shall  furnish  water  to  the  class  of  persons 
using  the  water  in  the  way  named  in  the  certificate  in 
the  way  the  water  is  designated  to  be  used,  whether 
miners,  mill  men,  farmers  or  for  domestic  use,  whenever 
they  shall  have  water  in  their  ditch  unsold,  and  shall  at 


52  IRRIGATION    LAWS. 

all  times  give  the  preference  to  use  of  the  water  in  said 
ditch  to  the  class  named  in  the  certificate,  the  rates  at 
which  water  shall  be  furnished  to  be  fixed  by  the 
county  commissioners  as  soon  as  such  ditch  shall  be 
completed  and  prepared  to  furnish  water.  G.  L.  '77,  p. 
172,  sec.  277;  G.  S.  '83,  p.  199,  sec.  311. 

1.  County  commissioners  fix  rates  of  water.     See 
Colo.  Const.,  art.  XVI.,  sec.  6. 

2.  Rates    of    charge    for    water    and    regulation 
thereof.     Sec.  2295,  etc. 

3.  Right   to   continue   purchasing    water.       Sec. 
2997. 

4.  This    section    is    not    repealed   by   sec.   2297. 
Wheeler  v.  North  Colo.  Ir.  Co.,  10  Colo.,  595  (1887). 

5.  This  section  expressly  commands  ditch  com- 
panies having  water  in  their  canals  not  taken  to  furnish 
the  same  to  the  class  of  persons  using  it  in  the  manner 
named  by  the  articles  of  incorporation.      The  declara- 
tion therein  that  this  rate  shall  be  fixed  by  the  county 
commissioners  must  be  taken  with  the  constitutional 
condition  attached.     Id. 

Section  571.  Shall  keep  ditch  in  repair.  Every 
ditch  company  organized  under  the  provisions  of  this 
act  shall  be  required  to  keep  their  ditch  in  good  condi- 
tion, so  that  the  water  shall  not  be  allowed  to  escape 
from  the  same,  to  the  injury  of  any  mining  claim,  road, 
ditch  or  other  property;  and  whenever  it  is  necessary  to 
convey  any  ditch  over,  across  or  above  any  lode  or  min- 
ing claim,  or  to  keep  the  water  so  conveyed  therefrom, 
the  company  shall,  if  necessary  to  keep  the  water  of 
said  ditch  out,  or  from  any  claim,  flume  the  ditch  so  far 
as  necessary  to  protect  such  claim  or  property  from  the 
water  of  said  ditch.  G.  L.  '77,  pp.  172,  173,  sec.  278; 
G.  S.  '83,  p.  199,  sec.  312. 

1.  Owner    of    ditch    to    maintain    embankment. 
Sec.  2274. 

2.  Vested    rights    of    mill    and     ditch     owners. 
Sec.  2275. 


IRRIGATION    LAWS.  53 

3.  Liability  of  owner  for  damages.     Sec.  2272. 

4.  A  ditch  company  is  liable  for  damages  caused 
by  allowing  water  to  overflow  the  banks  of  their  ditch 
and   flood   the   land  of  another.     The   liability   arises 
from  the  failing  to  exercise  ordinary  care  in  preventing 
the  escape  of  the  water.     Greeley  Irr.  Co.  v.  House,  24 
Pac.  Rep.  330  (1890);  14  Colo.,  — ;  Ditch  Co.  v.  Ander- 
son, 8  Id.,  131;  Water  Co.  v.  Middaugh,  12  Id.,  443. 

Section  572.  Consolidation  of  ditch  companies. 
Companies  organized  under  the  laws  of  this  state  hold- 
ing ditches  or  canals  by  virtue  of  their  organization, 
which  derive  their  supply  of  water  for  their  respective 
ditches  or  canals  from  the  same  headgate  or  gates,  or 
the  same  source  or  sources  of  supply,  may  consolidate 
their  interests  and  unite  their  respective  companies 
under  one  name  and  management,  by  filing  a  certificate 
of  that  fact  in  the  office  of  the  secretary  of  this  state, 
and  a  counterpart  thereof  in  the  office  of  the  recorder  of 
the  county  or  counties  in  which  such  ditch  or  canals 
are  situated;  which  certificate  shall  be  signed  by  the 
presidents  of  the  companies  so  uniting,  with  the  com- 
mon seals  of  the  companies  affixed  thereto;  and  shall 
set  forth  the  fact  of  such  union  of  interests,  and  give 
the  name  of  the  new  company  thus  formed.  L.  '76,  pp. 
68,  69,  sec.  i;  Omitted,  G.  L.,  '775  G.  S.,  '83,  pp.  199, 
200,  sec.  313. 

Section  573.  Shall  commence  work  within  ninety 
days — Complete  in  two  years — Forfeit — Ditch  three 
years.  Any  company  formed  under  the  provisions  of 
this  act  for  the  purpose  of  constructing  any  ditch,  flume, 
bridge,  ferry  or  telegraph  line  shall  within  ninety  days 
from  the  date  of  their  certificate,  commence  work  on 
such  ditch,  flume,  bridge,  ferry  or  telegraph  line,  as 
shall  be  named  in  the  certificate,  and  shall  prosecute 
the  work  with  due  diligence  until  the  same  is  com- 
pleted, and  the  time  of  the  completion  of  any  such 
ditch,  bridge,  ferry  or  telegraph  line  shall  not  be 
extended  beyond  a  period  of  two  years  from  the  time 
work  was  commenced  as  aforesaid;  and  any  company 
failing  to  commence  work  within  ninety  days  from  the 
date  of  the  certificate,  or  failing  to  complete  the  same 


54  .  IRRIGATION    LAWS. 

within  two  years  from  the  time  of  commencement  as 
aforesaid,  shall  forfeit  all  rights  to  the  water  so  claimed, 
and  the  same  shall  be  subject  to  be  claimed  by  any 
other  company;  the  time  for  the  completion  of  any 
flume  constructed  under  the  provisions  of  this  act  shall 
not  be  extended  beyond  a  period  of  four  years;  provided, 
This  section  shall  not  apply  to  any  ditch  or  flume  for 
mining  or  other  purposes,  constructed  through  and  upon 
any  ground  owned  by  the  corporation;  and  provided 
further,  that  any  company  formed  under  the  provisions 
of  this  act  to  construct  a  ditch  for  domestic,  agricult- 
ural, irrigating,  milling  and  manufacturing  purposes,  or 
any  part  or  either  thereof,  shall  have  three  years  from 
the  time  of  commencing  work  thereon  within  which  to 
complete  the  same,  but  no  longer.  G.  L.,  '77,  pp.  179, 
180,  sec.  296;  G.  S.,  '83,  p.  200,  sec.  314. 

Section  574.  Damaging  road,  ditch,  flume — Pen- 
alty. Any  person  who  shall  willfully  or  maliciously 
damage  or  interfere  with  any  road,  ditch,  flume,  bridge, 
ferry  or  telegraph  line,  or  any  of  the  fixtures,  tools, 
implements,  appurtenances,  or  any  property  of  any 
company  which  may  be  organized  under  the  provisions 
of  this  act,  upon  conviction  thereof  before  any  court  of 
competent  jurisdiction  in  the  county  where  the  offense 
shall  have  been  committed,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  punished  by  fine  or  imprison- 
ment or  both,  at  the  discretion  of  the  court,  said 
imprisonment  not  to  exceed  one  year  and  said  fine  not 
to  exceed  five  hundred  dollars,  which  fine  shall  be  paid 
into  the  county  treasury  for  the  use  of  the  common 
schools,  and  said  offender  shall  also  pay  all  damages 
that  any  such  corporation  may  sustain,  together  with 
costs  of  suit.  G.  L.  '77,  p.  1 80,  sec.  297  ;  G.  S.  '83,  p.  • 
200,  sec.  315. 

i.  Penalty  for  cutting  or  breaking  gate,  bank, 
side  of  ditch,  flume,  etc.,  sec.  2393. 

Section  575.  What  certificate  shall  specify.  When 
any  company  shall  organize,  under  the  provisions  of 
this  act,  to  form  a  company  for  the  purpose  of  construct- 
ing a  flume,  their  certificate,  in  addition  to  the  matters 
required  in  the  second  section  of  this  act,  shall  specify 


IRRIGATION   LAWS.  55 

as  follows :  The  place  of  beginning,  the  terminus,  and 
the  route  so  near  as  may  be,  and  the  purpose  for  which 
such  flume  is  extended,  and  when  organized,  according 
to  the  provisions  of  this  act,  said  company  shall  have 
the  right  of  way  over  the  line  proposed  in  such  certifi- 
cate for  such  flume  ;  Provided,  It  does  not  conflict  with 
the  rights  of  any  former  fluming,  ditching,  or  other 
company.  G.  L.  '77,  p.  i73>sec-  2795  G-  s-  '83,  pp.  200, 
201,  sec.  316. 

i.     Duties  of  owners,  sec.  2274,  etc. 

Section  576.  What  certificate  shall  specify — Place 
—Stream— Ownership.  When  three  or  more  persons 
shall  associate,  under  the  provisions  of  this  act,  to  form 
a  company  for  the  purpose  of  constructing  a  bridge,  or 
establishing  a  ferry  over  any  of  the  streams  of  water  in 
this  state,  their  certificate,  in  addition  to  the  matters  re- 
quired in  the  second  section  of  this  act,  shall  specify  as 
follows:  The  place  where  such  bridge,  or  places  at 
which  such  bridges  or  ferry  is  to  be  built  or  established, 
and  on  what  streams,  and  that  the  banks  on  both  sides 
of  the  strean  where  the  said  bridge  or  ferry  is  to  be 
built  or  established  are  owned  by  said  company,  or  that 
they  have  obtained  in  writing  the  consent  of  the  owners 
of  the  banks  where  the  said  bridge  is  to  be  built,  to 
erect  said  bridge,  or  establish  the  said  ferry  as  afore- 
said, or  that  the  banks  at  such  place  are  a  public  high- 
way. G.  L.,  '77,  p.  173,  sec.  280;  G.  S.,  '83,  p.  201, 
sec.  317. 

i.     Fords  and  ferries,  sees.  579,  580. 


DIVISION  V. 


WATER  PRIVILEGES. 


Section  949.  Commissioners  may  subscribe  to 
capital  stock  of  corporations  and  issue  bonds.  It  shall 
be  lawful  for  the  board  of  commissioners  of  any  county 
in  this  state  to  subscribe  to  the  capital  stock  of  any  in- 


56  IRRIGATION    LAWS. 

corporated  company  organized  under  the  laws  of  this 
state  for  the  purpose  of  constructing  ditches,  flumes,  or 
other  works  for  the  supply  of  such  county  with  water 
for  mining,  milling,  irrigating  and  domestic  and  fire 
purposes,  such  subscription  to  be  paid  by  the  issue  of 
the  bonds  of  said  county,  as  herein  provided.  L.  '74,  p. 
193,  sec.  i;  G.  L.  '77,  p.  638,  sec.  1839.  This  act  is 
omitted  from  G.  S.  '83. 

Section  950.  How  such  aid  from  counties  may  be 
obtained — Special  election.  Whenever  any  such  incor- 
porated company  shall  solicit  the  aid  of  such  county  by 
subscription  to  its  capital  stock,  it  shall  submit  to  the 
board  of  county  commissioners  a  statement  in  writing, 
to  be  filed  in  the  office  of  the  county  clerk  of  such 
county,  setting  forth  the  sources  from  which  water 
is  to  be  obtained,  and  the  proposed  capacity  of 
the  the  ditch,  flume  or  pipes  by  which  the  water 
is  to  be  brought,  together  with  the  number  and  size  of 
the  reservoirs  to  be  constructed,  and  the  route,  as  near 
as  practicable,  over  which  the  same  is  to  be  brought, 
the  estimated  cost  of  the  said  works  when  completed, 
and  the  rates  at  which  they  agree  to  furnish  water  for 
the  purposes  set  forth  for  the  first  three  years  after  the 
same  is  in  operation.  Such  statement  shall  also  be 
accompanied  with  a  petition  of  at  least  fifty  legal  voters 
of  said  county,  who  shall  have  paid  taxes  on  property, 
real  or  personal,  in  said  county  during  the  year  preced- 
ing that  in  which  such  petition  is  drawn,  requesting 
said  board  to  call  an  election  in  said  county  upon  the 
question  of  the  issue  of  the  bonds  of  such  county  in 
aid  of  said  company,  in  payment  of  the  proposed  sub- 
scription to  the  capital  stock  of  said  company.  Upon 
the  receipt  of  such  statement  and  petition,  the  said 
board  of  county  commissioners  shall  thereupon,  within 
ten  days  thereafter,  call  a  special  election  upon  such 
question,  and  enter  an  order  on  their  journal  thereof. 
Such  election  shall  be  upon  notice  published  in  some 
newspaper  published  in  said  county,  for  at  least  ithree 
weeks  before  the  day  named  therein  upon  which  the 
vote  shall  be  taken ;  or,  if  there  is  no  newspaper  pub- 
lished in  said  county,  then  by  putting  notices  at  the 
several  places  of  voting  in  the  different  precincts  of  said 


IRRIGATION   LAWS.  57 

county  for  the  same  period.  Said  notice  shall  contain 
the  statement  of  the  said  company  as  above  prescribed, 
together  with  the  terms  and  conditions  upon  which  such 
stock  is  to  be  subscribed,  and  the  bonds  issued,  and  any 
other  matter  necessary  to  a  fair,  impartial  and  intelli- 
gent expression  of  the  will  of  the  voters  of  such  county 
upon  the  question  submitted;  which  question  shall  be 
as  to  the  subscription  to  the  capital  stock  of  said  com- 
pany and  the  issuance  of  the  bonds  of  said  county  in 
payment  thereof.  Such  notice  shall  also  state  the  time 
which  such  bonds  shall  run,  the  rate  of  interest  they 
shall  bear,  and  the  manner  in  which  they  shall  be  paid. 
L.  '74,  pp.  193-195,  sec.  2  ;  G.  L.  '77,  pp.  638-639,  sec. 
1840. 

Section  951.  Manner  of  issuing  bonds.  If  two- 
thirds  majority  of  all  votes  cast  at  such  election  shall 
be  in  favor  of  the  subscription  to  the  said  stock  and  the 
issuance  of  such  bonds,  it  shall  be  the  duty  of  the  said 
board  of  county  commissioners  to  subscribe  said  stock 
and  issue  said  bonds  of  said  county,  and  to  exchange 
the  same  at  the  par  value  for  the  stock  of  said  company 
at  its  par  value;  provided,  That  no  bonds  shall  be  issued 
bearing  interest  at  a  rate  exceeding  ten  per  cent,  per  an- 
num; and  provided  further,  that  no  bonds  shall  be  issued 
due  and  payable  until  fifteen  years  after  the  date  thereof, 
except  at  the  option  of  the  said  board  of  county  com- 
missioners of  such  county,  after  five  years  from  date 
thereof.  L.  '74,  p.  195,  sec.  3  ;  G.  L.  '77,  p.  639,  sec. 
1841. 

i.  This  section  referred  to  in  Coulter  v.  Routt 
County,  9  Colo.,  264  (1886). 

Section  952.  Special  tax  for  payment  of  principal 
and  interest.  The  board  of  county  commissioners  of 
any  such  county  shall  have  power  to  levy  a  special  tax, 
to  be  paid  in  cash,  of  not  to  exceed  three  mills  on  each 
and  every  dollar  of  property  assessed  and  liable  to  tax- 
ation in  such  county,  each  year,  for  the  payment  of  the 
interest  annually  on  such  bonds;  and  at  the  end  of  five 
years  it  shall  be  the  duty  of  such  board  to  levy  a  tax 
not  exceeding  five  mills  on  the  assessed  value  of  the 
property  in  said  county,  for  each  and  every  year,  for  the 


58  IRRIGATION   LAWS. 

payment  of  the  interest  and  principal  of  said  bonds;  and 
all  money  applicable  to  the  payment  of  the  principal  of 
said  bonds  shall  be  applied  to  the  payment  thereof  by 
the  said  board  at  the  end  of  the  fiscal  year  of  each 
county;  provided,  That  the  amount  so  levied  each  year 
shall  be  an  amount  sufficient  at  such  rates  to  pay  the 
amount  of  said  bonds  at  maturity.  Iy.  '74,  p.  195,  sec. 
4;  G.  L.  '77,  pp.  639,  640,  sec.  1842. 

Section  953.  Discrimination  in  water  rates.  No 
incorporated  company  to  whose  stock  any  county  has 
subscribed  shall  make  any  discriminating  rates  against 
or  in  favor  of  any  person  or  corporation,  or  charge  one 
person  or  corporation  more  for  a  given  amount  of  water 
for  a  given  purpose  than  another,  except  that  in  cases 
where  a  small  quantity  of  water  only  is  required  it 
shall  be  lawful  for  the  company  to  make  such  charges 
as  may  be  just  and  reasonable,  without  regard  to  the 
rates  fixed  for  other  purposes  and  in  larger  amounts. 
L.  '745  PP-  !95>  !96,  sec.  5;  G.  L.  '77,  P-  640,  sec.  1843. 

Section  954.  Exchange  of  stock  for  bonds.  It 
shall  be  lawful,  at  any  time  after  three  years  from  the 
date  of  any  bonds  issued  under  the  provision  of  this  act, 
for  the  board  of  county  commissioners  of  any  county 
to  exchange  the  stock  so  held  and  subscribed  by  said 
county  for  the  bonds  of  said  county,  such  stock  to  be 
exchanged  at  its  par  value  and  such  bonds  taken  at 
their  par  value.  L.  '74,  p.  196,  sec.  6;  G.  L.  '77,  p.  640, 
'sec.  1844. 

Section  955.  Limitation  of  amount  of  bonds  issued. 
The  amount  of  bonds  issued  by  any  county  under  the 
provisions  of  this  act  shall  in  no  case  exceed  four  per 
cent,  of  the  assessed  value  of  the  property  situate  in 
said  county  for  the  year  preceding  that  in  which  such 
bonds  are  voted.  L,.  '74,  p.  196,  sec.  7;  G.  L.  '77,  p. 
640,  sec.  1845. 

Section  996.  Arapahoe  county  not  included.  The 
provisions  of  this  act  shall  not  apply  to  Arapahoe 
county.  L.  '74,  p.  196,  sec.  8;  G.  L.  '77,  p.  640, 
sec.  1846. 


IRRIGATION   LAWS.  59 

Section  1301.  Taking  illegal  fees— Triple  dam- 
ages— Penalty.  Any  judge,  justices  of  the  peace,  clerk, 
sheriff,  constable,  city  marshal,  or  other  public  officer, 
who  for  the  performance  of  an  official  duty,  for  which  a 
fee  or  compensation  is  allowed  or  provided  by  law,  shall 
willfully  and  knowingly  demand  or  receive  any  greater 
fee  or  compensation  either  in  money  or  other  thing  of 
value  than  what  is  allowed  or  provided  by  law  for  the 
same,  or  who  shall  willfully  and  knowingly  demand  or 
receive  any  such  fee  or  compensation  where  no  fee  or 
compensation  whatever  is  authorized  or  prescribed  by 
law,  shall  be  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  shall  be  confined  in  jail  not  less  than  one 
nor  more  than  six  months,  and  shall  be  fined  not  less 
than  one  hundred,  nor  more  than  five  hundred  dollars, 
besides  being  liable  on  a  civil  action  to  the  person  or 
persons  from  whom  such  fee  or  compensation  is  thus 
knowingly  and  illegally  demanded  or  received,  for  three 
times  the  value  or  amount  thereof,  and  upon  the  exami- 
nation or  trial  of  such  offense,  the  defendant  shall  be 
presumed  to  have  acted  willfully  and  knowingly,  until 
the  contrary  is  shown.  L.  '74,  p.  166,  sec.  i  ;  G.  L.  '77, 
p.  426,  sec.  1159;  G.  S.  '83,  p.  324,  sec.  817. 

Section  1376.  Polluting  streams — Penalty.  If  any 
person  or  persons  shall  hereafter  throw  or  discharge  into 
any  running  stream  of  water,  or  into  any  ditch  or  flume 
in  this  state,  any  obnoxious  substance,  such  as  refuse 
matter  from  slaughter  house  or  privy,  or  slops  from  eat- 
ing houses  or  saloons,  or  any  other  fleshy  or  vegetable 
matter  which  is  subject  to  decay  in  water,  such  person 
or  persons  shall  upon  conviction  thereof,  be  punished  by 
a  fine  not  less  than  one  hundred  dollars  nor  more  than 
five  hundred  dollars  for  each  and  every  offense  so  com- 
mitted. Iy.  '74.  p.  99,  sec.  i;  G.  Iy.  '77,  p.  307,  sec.  760; 
G.  S.  '83,  p.  342,  sec.  882. 

Section  1716.  Petition — Parties — When  state  is 
party — Private  property  taken  when.  That  in  all  cases 
where  the  right  to  take  private  property  for  public  or 
private  use  without  the  owner's  consent,  or  the  right  to 
construct  or  maintain  any  railroad,  public  road,  toll 
road,  ditch,  bridge,  ferry,  telegraph,  flume,  or  other 


60  IRRIGATION    LAWS. 

public  or  private  work  or  improvement,  or  which  may 
damage  property  not  actually  taken,  has  been  hereto- 
fore, or  shall  hereafter  be  conferred  by  general  laws  or 
special  charter,  upon  any  corporate  or  municipal  author- 
ity, public  body,  officer  or  agent,  person  or  persons,  com- 
missioner or  corporation,  and  the  compensation  to  be 
paid  for  in  respect  of  the  property  sought  to  be  appro- 
priated or  damaged  for  the  purposes  above  mentioned, 
can  not  be  agreed  upon  by  the  parties  interested;  or  in 
case  the  owner  of  the  property  is  incapable  of  consent- 
ing, or  his  name  or  residence  is  unknown,  or  he  is  a 
non-resident  of  the  state,  it  shall  be  lawful  for  the  party 
authorized  to  take  or  damage  the  property  so  required, 
or  to  construct,  operate  and  maintain  any  railroad, 
public  road,  toll  road,  ditch,  bridge,  ferry,  telegraph, 
flume,  or  other  public  or  private  work  or  improvement, 
to  apply  to  the  judge  of  the  district  or  county  court, 
either  in  term  or  vacation,  where  the  said  property  or 
any  part  thereof  is  situate,  by  filing  with  the  clerk  a 
petition,  setting  forth  by  reference: 

1.  His  or  their  authority  in  the  premises. 

2.  The  purpose  for  which  said  property  is  sought 
to  be  taken  or  damaged. 

3.  A  description  of  the  property. 

4.  The  names  of  all  persons  interested  therein  as 
owners  or  otherwise  as  appearing  of  record,  if  known, 
or  if  not  known,  stating  the  fact. 

5.  And  praying  such  judge  to  cause  the  compen- 
sation to  be  paid  to  the  owner  to  be  assessed. 

6.  If  the  proceedings  seek  to  eftect  the  property 
of  persons  under  guardianship,  the  guardians  or  conser- 
vators of   persons  having  conservators,  shall  be  made 
parties  defendant,  and  if  of  married  women,  their  hus- 
bands shall  also  be  made  parties. 

7.  Persons  interested,  whose  names  are  unknown, 
may  be  made  parties  defendant  by  the  description  of 
the  unknown  owners. 


IRRIGATION    LAWS.  6 1 

8.  But   in   all    such    cases    an    affidavit   shall    be 
filed  by  or  on  behalf  of  the  petitioner,  setting  forth  that 
the  names  of  such  persons  are  unknown. 

9.  In  cases  where  the   property   is   sought  to  be 
taken  or  damaged  by  the  state  for  the  purpose  of  estab- 
lishing, operating  or  maintaining  any   state  house,  or 
charitable  or   other   state    institution   of  improvement, 
the  petition  shall  be  signed  by  the   governor,  or  such 
other  person  as  he  shall  direct,   or  as  shall  be  provided 
by  law.      Under  the  provisions  of  this  act,  private  prop- 
erty may  be  taken  for  private    use,  for  private  ways  of 
necessity,  for  reservoirs,  drains,  flumes  or  ditches,  on  or 
across  the  lands  of  others  for  agricultural,  mining,  mill- 
ing, domestic  or  sanitary  purposes. 

The  amendment  of  said  act  shall  not  be  construed 
to  affect  any  right,  either  as  to  remedy  or  otherwise, 
nor  to  abate  any  suit  or  action  or  proceeding  existing, 
instituted  or  pending  under  the  act  so  hereby  amended. 
L.  '85,  pp.  200,  201,  sec.  i,  amending  G.  I,.,  '77,  pp.  397, 
398,  sec.  1059;  G.  S.,  Code,  '83,  p.  75,  sec.  238. 


DIVISION  I. 


RIGHT   OF   WAY — APPROPRIATION — USE    OF  WATKR. 

Section  2256.  Owners  of  land  on  streams  entitled 
to  use  water — Appropriation.  All  persrns  who  claim, 
own  or  hold  a  possessory  right  or  title  to  any  land  or 
parcel  of  land  within  the  boundary  of  the  state  of  Col- 
orado, as  denned  in  the  constitution  of  said  state,  when 
those  claims  are  on  the  bank,  margin  or  neighborhood 
of  any  stream  of  water,  creek  or  river,  shall  be  entitled 
to  the  use  of  the  water  of  said  stream,  creek  or  river 
for  the  purposes  of  irrigation,  and  making  said  claims 
available  to  the  full  extent  of  the  soil,  for  agricultural 
purposes.  L.  '61,  p.  67,  sec.  i;  R.  S.,  '68,  p.  363,  sec.  i; 
G.  L.,  '77,  p.  5^5)  sec.  1372;  G.  S.,  '83,  pp.  560,  561,  sec. 
1711. 


62  IRRIGATION   LAWS. 

1.  As  to  wasting  water,  see  sees.  2282-3. 

2.  Statement  to  be   filed   with   county   clerk   by 
owner,  when  capacity  exceeds  one   cubic  foot,  sec  2265. 

3.  Damage  done  to  ditches,  flumes,  etc.,  by  floating 
timber.     See  sec.  2013. 

4.  For  irrigation  of  towns  and   cities.     See  sec. 
4539,  etc. 

5.  As  to  irrigation  for  counties.   See  Div.  V.,  chap. 
33,  uCounty  Government,"  sees.  949-956. 

6.  As  to  the  measure  of  water.     Statute  inch — see 
sec.  4643;  cubic  foot — sec.  2467. 

7.  The  chapter  on  "Drainage"  (G.  S.,  '83,  p.  399, 
etc.)  was  repealed  by  the  Iy.,  '85,  p.  190,  sec.  i.     As  to 
the  rights  of  an  appropriator  to  enter  land  of  another  to 
fix  ditch,  etc.,  see  sec.  2264,  note. 

8.  Irrigation  defined.    See  const,  art.  XVI.,  sec.  5, 
note  22,  etc. 

9.  As  to  fixing  maximum  rates  for  transporting 
water.     See  sec.  2295,  etc. 

10.  As   to   the  adjudicating  of  rights.     See  sec. 
2399,  etc. 

11.  As  to  seepage,  percolating  and  underground 
waters.     See  sec.  2269  and  notes. 

12.  This  section  is  valid  and  constitutional.    Yun- 
ker  v.  Nichols,  i  Colo.,  566  (1872). 

13.  For  the  points  in  this  case.    See  const.,  art. 
XVI,  sec.  7,  notes  4-14. 

14.  This  section  commented  on  in  Coffin  v.  Left- 
Hand  Ditch  Co.,  6  Colo.,  4501  (1882).     See  also  sec. 
568  and  notes. 

15.  See  as  to  the  construction  of  the  words  in  this 
section,  "on  the  bank,  margin  or  neighborhood."     Sec. 
568,  note  9. 


IRRIGATION   LAWS.  63 

ABANDONMENT. 

See  const.,  art.  XVI,  sec.  6,  note  39,  etc. 

23.  An  appropriator  of  water,  who  for  many  years 
makes  no  use  of  the  water,  allows  his  ditch  to  become 
obliterated,  and  interposes  no  objection  to  the  diversion 
of  the  water  by  a  subsequent  appropriator,  will  be  pre- 
sumed to  have  abandoned  his  right  of  priority.  Dorr  v. 
Hammond,  7.  Colo. ,  79;  Farmers'  H.  L,.  Canal  &  R.  Co. 
v.  Southworth,  13  Id.,  136  (1889). 

25.  A  failure  to  use  for  a  time  is  competent  evi- 
dence on  the  question  of  abandonment,  and  if  such 
non-use  be  continued  for  an  unreasonable  period  it  may 
fairly  create  a  presumption  of  intention  to  abandon;  but 
this  presumption  is  not  conclusive,  and  may  be  over- 
come by  other  satisfactory  proofs.  Id.;  Sieber  v. 
Frink,  7  Colo.,  148. 

APPROPRIATION — PRIORITY  GIVES   BETTER    RIGHT. 

27.  For  all  the  Colorado  cases  upon  this  subject 
see  Const,  art.  XVI.,  sec.  6,  and  notes.     For  the  con- 
stitutional  provisions  of  the  several  western  states  on 
irrigation  see  Const.,  art.  XVI.,  sec.  5,  notes. 

28.  The  first  appropriator  of  water  from  a  natural 
stream  for  a  beneficial  purpose  has  a  prior  right  thereto 
to  the  extent  of  such  appropriation.     Wheeler  v.  North 
Colo  Irr.  Co.,  10  Colo.,  582;  S.  C.,  3  Am.  St.  Rep.,  605; 
Hammon  v.  Rose,  n   Colo.,  524-5  (1888);  S.  C.,  7  Am. 
St.  Rep.  258. 

28  (a)  If  land  be  rendered  productive  by  the 
natural  overflow  of  water  thereon,  without  the  aid  of 
any  appliances  whatever,  the  cultivation  of  such  land 
by  means  of  the  water  so  naturally  moistening  the  same 
is  sufficient  appropriation  of  such  water  to  the  amount 
necessary  for  such  use.  Thomas  v.  Guiraud,  6  Colo., 
532  (1883). 

29.  The  diversion  of  the  water  of  a   stream  with 
the  object  of  draining  simply,  or  without  the  intention 
of  applying  them  to  some  useful  purpose,  does  not  con- 
stitute   an    appropriation.       Thomas     v.    Guiraud,     6 
Colo.,  530. 


64  IRRIGATION   LAWS. 

31.  To  constitute  a  legal  appropriation  the  water 
claimed  must  be  applied  to  some  beneficial  use  or  pur- 
pose. See  Const.,  art  XVI.,  sec.  6,  notes  1-15. 

34.  The  legislature  cannot  prohibit  the  appropria- 
tion or  diversion  of  unappropriated  water  for  useful  pur- 
poses from  natural  streams  upon  the  public  domain,  but 
it  may  regulate  the  manner  of  affecting  such  appropria- 
tion or  diversion,  and  may  designate  how  the  water 
shall  be  turned  from  the  stream  or  how  it  shall  be 
stored  and  preserved.  Larimer  County  R.  Co.  v.  People, 
8  Colo.,  614. 

APPROPRIATION — DILIGENCE. 

44.  To  acquire  a  right  to  water  from  the  date  of 
the  diversion  thereof,  one  must  within  a  reasonable  time 
employ  the  same  in  the  business  for  which  the  appro- 
priation is  made.  What  shall  constitute  such  reasona- 
ble time  is  a  question  of  fact,  depending  upon  the  cir- 
cumstances connected  with  each  particular  case.  See 
Const.,  art.  XVI,  sec.  6,  notes  24,  etc.,_  Highland  Ditch 
Co.  v.  Mumford,  5  Colo.,  336,  1880. 

APPROPRIATION  COMPLETED — RELATES  BACK. 

48.  Although  the  appropriation  is  not  deemed  com- 
plete until  the  actual  diversion  or  use  of  the  water,  still 
if  such  work  be  prosecuted  with  reasonable  diligence, 
the  right  relates  to  the  time  when  the  first  step  was 
taken  to  secure  it.  See  Const.,  art.  XVI.,  sec.  6,  note  24, 
etc. 

APPROPRIATION — PLACE  OF  USE. 

50.  The  right  to  water  acquired  by  prior  appropri- 
ation is  not  in  any  way  dependent  upon  the  locus  of  its 
application  to  the  beneficial   use  designed  or  to  the  par- 
ticular use  to  which  it  was  first  applied.     See  Const., 
art.  XVI.,  sec.  ,6,  notes  27-38;  CofHn  v.  Left-Hand  Ditch 
Co.,  6  Colo.,  443;  Thomas  v.  Guiraud,  Id.,  530. 

APPROPRIATION — POINT  OF  DIVERSION. 

51.  One  entitled  to  divert  a  quantity  of  water  from 
a  stream  may  take  the  same  at  any  point  on  the  stream 


IRRIGATION   LAWS.  65 

and  may  change  the  point  of  diversion  if  the  rights  of 
others  be  not  injuriously  affected  by  the  change.  See 
Const.,  art.  XVL,  sec.  6,  notes  27-38;  Sieberv.  Frink,  7 
Colo.,  148. 

APPROPRIATION — EXTENT  OF. 

54.  The  appropriation  of  the  water  of  a  stream  for 
a  particular  purpose  is  an  appropriation  of  only  so  much 
of  the  water  as  is  necessary  for  that  purpose,  and  the 
surplus,  if  any,  may  be  taken  by  others.  Sieber  v. 
Frink,  7  Colo.,  148, 

59.  A  person  can  be  subrogated  to  the  rights  of  an 
original  appropriatior  or  his  grantee,  to  a  certain  num- 
ber of  inches  of  water.     Such  right  passes  by  grant. 
Bugh  v.  Rominger,  24  Pac.  Rep.,  1046  (1890);  14  Colo., 
see  Const,  art.  XVI.,  sec.  6,  notes  16,  etc. 

60.  The  right  acquired  by  the  prior  appropriator 
is  limited  to  the  amount  of  water  appropriated.    In  sub- 
ordination to  his  right  thus  limited,  others  may  appro- 
priate the  remainder  of  the  water  running  in  the  stream. 
Thomas  v.  Guiraud,  6  Colo. ,  530. 

62.  A  subsequent  appropriator  from  a  natural 
stream  has  no  right  to  destroy  the  ditch  of  a  prior  ap- 
propriator, or  to  materially  diminish  the  quantity  or 
deteriorate  the  quality  of  the  water  to  which  the  latter 
is  entitled  ;  nor  has  the  prior  appropriator  a  right  to 
extend  his  use  of  water  to  the  prejudice  of  the  subse- 
quent appropriator.  Sieber  v.  Frink,  7  Colo.,  148;  Lari- 
mer Co.  R.  C.  v.  People^  ex  rel.,  8  Id.,  614;  see  Const., 
art.  XIV.,  sec.  6,  notes,  31,  etc. 

APPROPRIATION   AND   COMMON   LAW. 

64.  See  Const.,  article  XVI.,  section  6,  notes  5 
and  19-20. 

APPROPRIATION    BY   DAM   OR   RESERVOIR: 

69.  One  may  utilise  as  a  reservoir  for  storing 
water  a  natural  depression  on  the  public  land,  which 
includes  the  bed  of  a  stream ;  but  he  must  see  to  it  that 
no  legal  right  of  prior  appropriators  or  other  persons  is 

5—1.  t. 


66  IRRIGATION    LAWS. 

in  any  way  interfered  with  by  his  acts.    Larimer  Co.  R. 
Co.  v.  People  ex  rel.,  8  Colo.,  614. 

CONVEYANCES — DEEDS — APPURTENANCES — WATER 
RIGHTS. 

76.  It  is  acquired  by  use  and  not  grant.  See 
Mills'  Const.  Anno.,  art.  XVI.,  sec.  6,  notes  16,  etc. 

DITCHES. 

94.  A  municipal  corporation  which  accepts  the 
dedication  of  streets  across  which  a  ditch  has  been  pre- 
viously located  and  right  of  way  therefore  acquired, 
takes  the  same  subject  to  the  prior  rights  of  the  owners 
of  the  ditch;  and  when  the  necessities  of  the  public  re- 
quire that  such  ditch  be  bridged  at  the  street  crossings, 
it  is  the  duty  of  the  city,  and  not  of  the  owner  of  the 
ditch,  to  construct  such  bridges.  Denver  v.  Mullen,  7 
Colo.,  345. 

98.  A  water  ditch  and  the  water-right  appurtenant 
thereto  are  real  property;  see  Mills'  Const.  Ann.,  art. 
XVI.,  sec.  8,  note  22. 

109.  As  to  irrigation  and  ditch  companies,  see  sec. 
567,  etc.;  flume  companies,  see  sec,  575.  They  are 
common  carriers  or  impressed  with  a  public  trust. 
Const,  art.  XVI.,  sec.  6,  notes  62,  etc. 

no.  Ditch  owners,  as  such,  are  carriers  and  must 
furnish  water  at  the  established  rate  (the  county  com- 
missioners being  empowered  to  fix  a  maximum  rate)  to 
the  class  of  persons  using  it  in  the  manner  named  in 
the  articles  of  incorporation.  Golden  Canal  Co.  v. 
Bright,  8  Colo.,  144;  Wheeler  v.  Northern  Colo.  Irr.  Co., 
n  Id.,  582;  S.  C.,  3  Am.  St.  Rep.,  603. 

in.  Owners  of  ditches  or  canals  as  such,  are 
carriers  and  quasi-public  servants.  They  are  awarded 
certain  privileges  and  are  charged  with  certain  duties 
and  subject  to  reasonable  control.  Wheeler  v.  Northern 
Colo.  Irr.  Co.,  10  Colo.,  582;  S.  C.,  3  Am.  St.  Rep  ,  603; 
see  Const.,  art.  XVI.,  sec.  6,  note  57,  etc. 


IRRIGATION   LAWS.  67 

EASEMENTS. 

113.  See  Const,  art.  XVI.,  sec.  7,  notes  4,  etc. 

114.  Right  of  appropriator  to  enter  the  lands  of 
another   to   make   his   appropriation  effectual,  see   sec. 
2264,  note  2. 

115.  All  lands  in  this  territory  are  held  in  subor- 
dination to  the  the  dominant  right  of  others  who   must 
necessarily  pass  over  them  to  obtain  a  supply  of  water 
to   irrigate   their   lands.     It  is  not,  therefore,  necessary 
that  there  should  be  a  conveyance  in  writing  to  estab- 
lish an  easement  for  right  of  way  for  a  ditch.     Yunker 
v.  Nichols,  i  Colo.,  551. 

1 1 6.  The  rule  that  the  owner  of  a  tract  of  land 
has  an  easement  in  a  lower  adjacent  tract  to  the  extent 
of  burdening  it  with  the  water  naturally  flowing  to  it 
from  the  upper  tract,  applies  only  to  waters  naturally  so 
flowing,  and  the  servitude  of  the  lower  tract  cannot  be 
made  more  burdensome  by  the  acts  or  industry  of  man. 
See  Const.,  art.  VI. ,  sec.  7,  note  4,  etc. 

EMINENT   DOMAIN. 

1 20.  Statutes  confirming  the  power  to  condemn 
private  property  to  the  use  of  another  without  the  con- 
sent of  the  owner  are  in  derogation  of  the  common  law, 
and  must  be  strictly  construed;  see  Const.,  art.  XVI., 
sec.  7,  notes;  also  art.  II.,  sees.  14,  15,  and  notes. 

124.  The  proprietor  of  an  irrigating  ditch  has  a 
property  ownership  both  in  the  ditch  and  the  right  of 
way  therefor,  which  cannot  be  taken  or  damaged  for 
public  use  except  upon  payment  of  just  compensa- 
tion; Tripp  v.  Overocker,  7  Colo.,  72. 

MINERS'  RIGHT  TO  USE  OF  WATER. 

138.  The  use  of  water  for  mining  purposes  is  one 
of  the  uses  recognized  and  protected  by  the  laws,  both 
of  the  state  and  federal  governments,  and  while  an 
appropriator  of  the  water  of  a  natural  stream  is  entitled 
to  have  such  water  flow  down  to  him  undiminished  in 
quantity  and  any  deterioration  in  quality,  occasioned  by 


68  IRRIGATION    LAWS. 

the  use  of  it  above  for  mining  purposes,  must  be  an 
injury  without  consequent  damages;  see  People  ex.  rel., 
Wolpert  v.  Rogers  et  al.,  12  Colo.,  281,  1888. 

REMEDIES — EQUITABLE. 

150.  An  action  in  equity  lies  for  flooding  when  no 
laches  in  bringing  suit.  Fuller  v.  Swan  River  Placer 
Min.  Co.,  12  Colo.,  12  (1888). 

152.  An  appropriator  of  water  is  entitled  to  protec- 
tion against  acts  which  materially  diminish  the  quan- 
tity of  water  to  which  he  is  entitled,  or  deteriorate  its 
quality  for  use  to  which  he  desires  to  apply  it.  Equity 
affords  the  appropriate  remedy  by  way  of  an  injunction 
for  such  wrongs.  Schilling  v.  Rominger,  4  Colo.,  100. 

REM  EDIES — LEGAL. 

1 68.  A  person  holding  an  assignment  of  .shares  of 
stock  in  a  joint  stock  ditch  company,  but  not  trans- 
ferred on  the  books  of  the  company,  is  not  entitled  to 
waters  from  a  ditch  for  the  irrigation  of  his  lands,  not 
having  used  water  therefrom,  and  if  he  take  water  by 
force  from  the  ditch  he  is  liable  in  trespass.  Supply 
Ditch  Co.  v.  Elliott,  8  Colo.,  330-335  (1887).  As  to 
right  to  take  water  without  knowledge  of  the  ditch 
company  see  Coffin  v.  L,eft-Hand  Ditch  Co.,  6  Id.,  444- 
445  (1882). 

172.  In  an  action  for  diversion  of  water  the 
defendant  is  not  liable  for  damages  to  another  appropri- 
ator from  the  same  stream  resulting  from  a  deficiency 
of  the  water  supply,  unless  he  was  diverting  from  the 
stream  more  water  than  he  was  entitled  to  at  the  pre- 
cise time  the  deficiency  complained  of  existed.  Brown 
v.  Smith,  10  Colo.,  508. 

RIPARIAN   OWNERSHIP   AND   RIGHTS. 

196.  Each  riparian  owner  has  a  right,  within  his 
territory,  to  the  use  of  the  water  as  it  flows,  returning  it 
to  the  channel  of  the  river  for  the  use  of  those  below. 
Mason  v.  Cotton,  4  Fed.  Rep.,  792;  2  McCrary  (Colo.)> 
82  (1880). 


IRRIGATION   LAWS.  69 

197.  The  remedy  for  the  violation  of  the  riparian 
rights  is  by  action  at  law,  and  while  equity  may  take 
cognizance  of  the  violation  of  these  rights,  when  con- 
ceded and  established,  it  will  not  aid  one  who,  out  of 
mere  captiousness,  refuses  to  use  water  after  it  has  been 
diverted  from  the  stream  by  another,  if  he  may  so  use  it 
with  substantially  the  same  results  as  if  obtained  by 
continuous  flow  from  the  stream  through  his  own 
race.  Id. 

STATUTE   OF  FRAUDS. 

234.  The  right  to  conduct  water  over  the  lands  of 
another  is  an  interest   in  lands.     See  sec.  2019,  notes; 
Yunker  v.  Nichols,  i    Colo.,  552-557,  etc.  (1872);  Schil- 
ling v.  Rominger,  4   Id.,  105   (1878).      But   it  may  be 
passed   otherwise    than  by  deed.     Id.,  109;  Yunker  v. 
Nichols,  i  Id.,  570  (1872). 

235.  As  to  when  a  contract  to  appropriate  water 
is  not  reached  by  this  statute  see  Schilling  v.  Romin- 
ger, 4  Colo.,  104  (1878);  see  also  Whitsett  v.  Kershow, 
Id.,  423. 

Section  2257.  Right  of  way  through  farms  and 
lands.  When  any  person  owning  claims  in  such  local- 
ity has  not  sufficient  length  of  area  exposed  to  said 
stream  to  obtain  a  sufficient  fall  of  water  to  irrigate  his 
land,  or  that  his  farm,  or  land  used  by  him  for  agricul- 
tural purposes,  is  too  far  removed  from  said  stream,  and 
that  he  has  no  water  facilities  on  those  lands,  he  shall 
be  entitled  to  a  right  of  way  through  the  farms  or  tracts 
of  land  which  lie  between  him  and  said  stream,  or  the 
the  farms  or  tracts  of  lands  which  lie  above  and  below 
him  on  said  stream,  for  the  purposes  hereinbefore  stated. 
L.  '61,  p.  67,  sec.  2;  R.  S.  '68,  p.  362,  sec.  2;  G.  L.  '77, 
p.  515,  sec.  1373;  G.  S.  '83,  p.  561,  sec.  1712. 

1.  For  proceedings  to  condemn  right  of  way,  see 
chapter  "Eminent  Domain." 

2.  Exemption  of  ditches  from  taxation.     See  sec. 
2397;  also  sec.  568,  2260;  also  const.,  art.  X.,  sec.  3. 

3.  See  the  case  of  Yunker  v.  Nichols,  i  Colo.,  554, 
566,  570  (1872).     The  points  in  this  case  are   stated  in 


70  IRRIGATION   LAWS. 

const,  art.  XVI.,  sec.  7,  notes  4-14;  Stewart  v.  Stephens, 
10  Colo.,  445  (1887).     See  same  notes. 

4.  This  section  gives  right  of  way  for  ditch,  but  it 
must   be   paid   for.     Tripp   v.   Overocker,    7   Colo.,   73 
(1883);  Downing  v.  Moore,  12  Id.,  319  (1888). 

5.  Instance  where  a  bond  in  the  sum  of  $10,000 
was  given,  conditioned  to  pay  the  damages  to  be  awarded 
for  condemning  right  of  way  for  ditch.     Davis  v.  Wan- 
namaker,  2  Colo.,  637  (1875). 

6.  An  order  of  court  requiring  defendant  to  build 
sluices  for  irrigating  water,  whenever  necessary,  is  inef- 
fectual for  any  purpose  on  account  of  its  uncertainty. 
McKensie  v.  Ballard,  24  Pac.  Rep.,  i;  14  Colo. 

Section  2258.  Extent  of  right  of  way.  Such  right 
of  way  shall  extend  only  to  a  ditch,  dyke  or  cutting  suf- 
ficient for  the  purpose  required.  L.  '81,  p.  67,  sec.  3; 
R.  S.  '68,  p.  363,  sec.  3;  G.  L.  '77,  p.  5J5>  sec-  *374;  G. 
S.  '83,  p.  561,  sec.  1713. 

i.  This  section  gives  right  of  way  for  ditch,  but  it 
must  be  paid  for.  Tripp  v.  Cverocker,  7  Colo.,  73 
(1883);  see  also,  Downing  v.  Moore,  12  Id.,  319  (1888); 
see  const.,  art.  II.,  sees.  14,  15  and  notes,  and  art.  XVI., 
sec.  7  and  notes. 

Section  2259.  This  section  is  unconstitutional  and 
in  conflict  with  laws  subsequently  enacted.  (Note  by 
state  engineer.) 

Section  1762  of  G.  S.  does  away  with  sec.  2259. 

Section  2260.  Condemnation  of  right  of  way. 
Upon  the  refusal  of  the  owners  of  tracts  of  land  or 
lands  through  which  said  ditch  is  proposed  to  run,  to 
allow  of  its  passage  through  their  property,  the  person 
or  persons  desiring  to  open  such  ditch  may  proceed  to 
condemn  and  take  the  right  of  way  therefor  (under  the 
provisions  of  chapter  thirty-one  of  these  laws  concern- 
ing eminent  domain).  G.  L.  '77,  p.  516,  sec.  1376;  G.  S. 
'83,  p.  561,  sec.  1715. 

Section  2261.  No  land  burdened  with  more  than 
one  ditch,  except  etc.  That  no  tract  or  parcel  of 


IRRIGATION   LAWS.  71 

improved  or  occupied  land  in  this  state,  shall,  without 
the  written  consent  of  the  owner  thereof,  be  subjected 
to  the  burden  of  two  or  more  irrigating  ditches  con- 
structed for  the  purpose  of  conveying  water  through 
said  property  to  lands  adjoining  or  beyond  the  same, 
when  the  same  object  can  feasibly  and  practicably  be 
attained  by  uniting  and  conveying  all  water  necessary 
to  be  conveyed  through  such  property  in  one  ditch.  L. 
'81,  p.  164,  sec.  i;  G.  S.  '83,  p.  562,  sec.  1716. 

1.  It  was  competent  for  the  legislature  to  adopt 
this   section;  Tripp  v.    Overocker,    et   al.,    7   Colo.,  73, 
1883.     The  constitutional  provision  granting  the  right 
of  way  for  the  construction  of  ditches  must  be  exercised 
in  such  a  way  as  to  inflict  the  least  possible  inconveni- 
ence and  injury  upon  the  owner  of  the  servient  estate; 
Id. 

2.  By  this  section  a  party  cannot   take  a   second 
ditch  across  cultivated  lands  to  irrigate  his  lands  beyond, 
when  he  can  feasibly  convey  water  through  defendant's 
ditch;  Id. 

3.  But  defendant's  ditch  must    be    one    in  which 
there  are  rights  of  others  which  make  it  a  burden  to  the 
land;  Downing  v.  Moore,  12  Colo.,  319,  (1888). 

4.  This  section  does  not  give  the  right  to  condemn 
an  enlargement  of  a  mere  private   ditch  on  defendant's 
own  land,  and  not  passing   entirely  through  the  same; 
for  such  ditch  is  wholly  at  the  will  of  the  owner  of  the 
land  and  constitutes  no  burden  thereon;  Tripp  v.  Over- 
ocker, supra.     So  far  as  intimating   otherwise,  is  modi- 
fied.    See  sec.  2263  and  notes;  Downing  v.   Moore,  12 
Colo.,  312,  (1888). 

Section  2262.  Shortest  route  must  be  taken. 
Whenever  any  person  or  persons  find  it  necessary  to  con- 
vey water  for  the  purpose  of  irrigation  through  the 
improved  or  occupied  lands  of  another,  he  or  they  shall 
select  for  the  line  of  such  ditch  through  such  property 
the  shortest  and  most  direct  route  practicable  upon 
which  said  ditch  can  be  constructed  with  uniform  or 
nearly  uniform  grade,  and  discharge  the  water  at  a  -point 
where  it  can  be  conveyed'  to  and  used  upon  the  land  or 


72  IRRIGATION    LAWS. 

lands  of  the  person  or  persons  constructing  such  ditch. 
L.  '81,  p.  164,  sec.  2;  G.  S.  '83,  p.  562,  sec.  1717. 

Section  2263.  Owner  of  ditch  must  permit  others 
to  enlarge — Conditions.  No  person  or  persons  having 
constructed  a  private  ditch  for  the  purposes  and  in  the 
manner  hereinbefore  provided,  shall  prohibit  or  prevent 
any  other  person  or  persons  from  enlarging  or  using  any 
ditch  by  him  or  them  constructed  in  common  with  him 
or  them,  upon  payment  to  him  or  them  of  a  reasonable 
proportion  of  the  cost  of  construction  of  said  ditch.  L. 
'81,  p.  164,  sec.  3;  G.  S.  '83,  p.  562,  sec.  1718. 

1.  In  so  far  as  this  section  undertakes  to  limit  or 
direct  the  compensation  to  be  paid  for  the  property,  it  is 
clearly  unconstitutional  and  void.    Tripp  et  al.  v.  Over- 
ocker  et  al.,  7  Colo.,  74  (1883). 

2.  Using  or  enlarging  a  ditch  without  the  owner's 
consent   is  as  much  a  taking  or  damaging  of  private 
property  within   the   meaning   of  the   constitution   as 
would  be  appropriating  the  right  of  way  therefor  in  the 
first  instance.     Id. 

3.  The   right   to   enlarge   and   use   the    ditch   of 
another  already  constructed  will  be  enforced  in  the  same 
manner,  and  tinder  the  same  law  as  the  right  to  take  or 
damage  any  other  kind  of  private  property.     Id. 

4.  But   such   ditch   to  be  so   enlarged   hereunder 
must  be  such  as  to  be  a  burden  to  the  land,  passing  en- 
tirely through  it,  and  not  wholly  and  absolutely  subject 
to  the  will  of  the  owner  of  the  land  in  being  merely  a 
private  ditch   thereon.     So  far  as  the  case  of  Tripp  v. 
Overocker,  supra,  holds  otherwise,  it  is  modified.     See 
sec.  2261  and  notes;    Downing  v.  More,   12   Colo.,    321 
(1888). 

Section  2264.  When  heads  of  ditches  may  be  ex- 
tended up  stream — Condemnation — Proviso  as  to  other 
ditches,  etc.  In  case  the  channel  of  any  natural  stream 
shall  become  so  cut  out,  lowered,  turned  aside  or  other- 
wise changed  from  any  cause,  as  to  prevent  any  ditch, 
canal,  or  feeder  of  any  reservoir  from  receiving  the 
proper  inflow  of  water  to  which  it  may  |be  entitled 


IRRIGATION    LAWS.  73 

from  such  natural  stream,  the  owner  or  owners  of  said 
ditch,  canal  or  feeder  shall  have  the  right  to  extend  the 
head  of  said  ditch,  canal  or  feeder  to  such  distance  up 
the  stream  which  supplies  the  same  as  may  be  necessary 
for  securing  a  sufficient  flow  of  water  into  the  same,  and 
for  that  purpose  shall  have  the  same  right  to  maintain 
proceedings  for  condemnation  of  right  of  way  for  such 
extension  as  in  case  of  constructing  a  new  ditch,  and 
the  priority  of  right  to  take  water  from  such  stream, 
through  such  ditch,  canal  or  feeder  as  to  any  such  ditch, 
canal  or  feeder  shall  remain  unaffected  in  any  respect 
by  reason  of  such  extension/  Provided,  However,  that 
no  such  extension  shall  interfere  with  the  complete  use 
or  enjoyment  of  any  other  ditch,  canal  or  feeder.  L. 
'81,  pp.  161,  162,  sec.  i;  G.  S.  '83,  p.  562,  sec.  1719. 

i.  For  condemnation  proceedings,  see  chap.  45 
"Eminent  Domain;1'  Const,  art.  XVI.,  sec.  7. 

I.  An  appropriation  of  water  at  a  given  point 
carries  with  it  an  implied  authority  to  do  all  that  shall 
become  necessary  to  secure  the  benefit  of  such  appro- 
priation. To  this  extent  the  appropriator  acquires  an 
easement  in  the  adjoining  lands.  This  right  is,  how- 
ever, restricted  to  the  narrowest  limits,  and  it  must  be 
exercised  in  such  manner  as  to  occasion  as  little  damage 
as  possible  to  the  owner  of  the  adjoining  premises. 
Crisman  v.  Heiderer,  5  Colo.,  589;  see  sec.  2256,  note. 

Section  2265.  Ditch  owners  must  file  map  and 
statement — Priority.  Every  person,  association  or  cor- 
poration hereafter  constructing  or  enlarging  any  ditch, 
canal  or  feeder  for  any  ditch  or  reservoir  for  irrigation 
and  taking  water  directly  from  any  natural  stream,  and 
of  a  carrying  capacity  of  more  than  one  cubic  foot  of 
water  per  second  of  time,  as  so  constructed  or  enlarged, 
shall,  within  ninety  (90)  days  after  the  commencement 
of  such  construction  or  enlargement,  file  in  the  office  of 
the  county  clerk  and  recorder  of  the  county  in  which 
the  headgate  of  such  ditch  or  feeder  may  be  situated, 
and  also  in  the  office  of  the  state  hydraulic  engineer,  a 
map  showing  the  point  of  location  of  such  headgate ; 
the  route  of  such  ditch  or  canal^  or  the  high  water  line 
of  such  reservoir  or  reservoirs,  and  the  route  of  the  feeder 


74  IRRIGATION    LAWS. 

to,  and  ditches  or  canals  from,  such  reservoir  or  reser- 
voirs ;  the  legal  subdivisions  of  the  lands  upon  which 
such  structures  are  built,  or  to  be  built,  if  on  surveyed 
lands  ;  the  names  of  the  owners  of  such  lands,  as  far  as 
the  same  are  of  record  in  the  office  of  the  county  clerk 
of  the  county  in  which  they  are  situated ;  such  courses, 
distances  and  corners,  by  reference  to  legal  subdivisions, 
if  on  surveyed  lands,  or  to  natural  objects  if  on  unsur- 
veyed  lands,  as  will  clearly  designate  the  location  of  such 
structures.  Upon  or  attached  to  such  map  shall  be  a 
statement  showing  : 

First — The  point  of  location  of  the  headgate  above 
mentioned. 

Second — The  depth,  width  and  grade  of  such  ditch, 
canal  or  feeder. 

Third — The  carrying  capacity  of  such  ditch,  tanal 
or  feeder,  in  cubic  feet  per  second  of  time,  and  the 
capacity  of  such  reservoir  or  reservoirs  in  cubic  feet, 
when  filled  to  the  high  water  mark. 

Fourth — The  time  of  commencement  of  work  on 
such  structures,  which  time  may  be  dated  from  the  com- 
mencement of  the  surveys  therefor.  In  case  of  an  en- 
largement, such  statement  shall  also  show  the  matters 
required  in  items  second,  third  and  fourth  above,  as  to 
the  enlargement,  and  state  the  increased  capacity  arising 
from  such  enlargement.  If  such  statement  be  filed  within 
the  time  above  limited,  priority  of  right  of  way,  and 
water  accordingly,  shall  date  from  the  day  named  as  the 
day  of  commencing  work;  otherwise,  only  from  the  date 
of  the  filing  of  the  same;  Provided,  That  nothing  herein 
contained  shall  be  taken  to  dispense  with  the  necessity 
of  due  diligence  in  the  prosecution  of  such  structures  on 
the  part  of  the  projectors  of  the  same.  Such  statement 
shall  be  signed  by  the  person,  association  or  corporation 
on  whose  behalf  it  is  made,  and  the  truth  of  the  matters 
shown  in  such  map  and  statement  shall  be  sworn  to  by 
some  person  in  whose  personal  knowledge  the  truth  of 
the  same  shall  lie.  L^.  '81,  p.  162,  sec.  2;  G.  S.  '83,  pp. 
562,  563,  sec.  1720;  amended,  L.  '87,  p.  314,  etc.,  sec.  2. 


IRRIGATION   LAWS.  75 

1.  Filing  statement  of  claim,  etc.     See  sec.  2400, 
also  2424. 

2.  Organization  of  corporation.     See  sec.  472,  570. 

3.  Ditch   companies  additional  matter.     See  sec. 
567,  575- 

4.  Requirements  of  ditch  owners.     See  sec.  2287- 
2293. 

5.  Duty  of  state  engineer.     See  sec.  2460. 

6.  This  section,  as  it  formerly  stood,  referred  to  in 
Crisman  v.  Heiderer,  5  Colo.,  594  (1881). 

Section  2266.  Only  irrigation  ditches  referred  to 
in  the  last  above  section.  This  act  shall  apply  to  and 
affect  only  ditches,  canals  or  feeders  used  for  carrying 
water  for  the  purpose  of  irrigation,  and  for  no  other 
purpose  whatever.  L.  '81,  p.  161,  sec.  3;  G.  S.  '83,  p. ' 
563,  sec.  1721. 

i.  This  section  referred  to  in  Crisman  v.  Heiderer, 
5  Colo.,  594  (1881). 

Section  2267.  Water  to  be  equally  divided  among 
consumers  pro-rated.  If  at  any  time  any  ditch  or  reser- 
voir from  which  water  is  or  shall  be  drawn  for  irriga- 
tion shall  not  be  entitled  to  a  full  supply  of  water  from 
the  natural  stream  which  supplies  the  same,  the  water 
actually  received  into  and  carried  by  such  ditch,  or  held 
in  such  reservoir,  shall  be  divided  among  all  consumers 
of  water  from  such  ditch  or  reservoir,  as  well  as  the 
owners,  shareholders  or  stockholders  thereof,  as  the  par- 
ties purchasing  water  therefrom,  and  parties  taking 
water  partly  under  and  by  virtue  of  holding  shares  and 
partly  by  purchasing  the  same,  to  each  his  share  pro 
rata,  according  to  the  amount  he,  she  or  they  (in  cases 
in  which  several  consume  water  jointly)  shall  be  then 
entitled,  so  that  all  owners  and  purchasers  shall  suffer 
from  the  deficiency  arising  from  the  cause  aforesaid 
each  in  proportion  to  the  amount  of  water  to  which  he, 
she  or  they  should  have  received  in  case  no  deficiency 
of  water  had  occurred.  L.  '79,  p.  97,  sec.  4;  G.  S.  '83, 
p.  563,  sec.  1722;  see  L.  '61,  p.  68,  sec.  4. 


76  IRRIGATION    LAWS. 

1.  As  to  pro-rating,  under  L.  '61,  p.  68,  sec.  4,  see 
Coffin  v.  Left-Hand  Ditch  Co.,  6  Colo.,  448  (1882). 

2.  As  to  pro-rating,  under   this  section,  see  F.  H. 
Iy.  C.  &  R.  Co.  v.  Southworth,  13  Colo.,  123-135  (1889); 
fully  set  out  in  Const,  art.  XVI.,  sec.  6,  notes  93,  etc. 

3.  Time    when    water    shall    flow   in.  irrigating 
ditches.     Sec.  2287. 

Section  2268.  .Irrigation  of  meadows — Right  to 
make  ditch — Priority.  All  persons  who  shall  have 
enjoyed  the  use  of  the  water  in  any  natural  stream  for 
the  irrigation  of  any  meadow  land,  by  the  natural  over- 
flow or  operation  of  the  water  of  such  stream,  shall, 
in  case  the  diminishing  of  water  supplied  by  such 
stream,  for  any  cause,  prevent  such  irrigation  therefrom 
in  as  ample  a  manner  as  formerly,  have  right  to  con- 
struct a  ditch  for  the  irrigation  of  such  meadow,  and 
to  take  water  from  such  stream  therefor,  and  his  or  their 
right  to  water  through  such  ditch  shall  have  the  same 
priority  as  though  said  ditch  had  been  constructed  at 
the  time  he,  she  or  they  first  occupied  and  used  such 
land  as  meadow  ground.  L.  '79,  p  106,  sec.  37;  G.  S. 
'83,  PP-  563,  564,  sec.  1723. 

Section  2269.  Priority  of  right.  That  all  ditches 
now  constructed  or  hereafter  to  be  constructed  for  the 
purpose  of  utilizing  the  waste,  seepage  or  spring  waters 
of  the  state,  shall  be  governed  by  the  same  laws  relat- 
ing to  priority  of  right  as  those  ditches  constructed  for 
the  purpose  of  utilizing  the  waters  of  running  streams; 
Provided,  That  the  person  upon  whose  lands  the  seepage 
or  spring  waters  first  arise,  shall  have  the  prior  right  to 
such  waters  if  capable  of  being  used  upon  his  lands. 
Iv.  '89,  p.  215,  sec.  i. 

Section  2270.  Reservoirs — Right  to  water — Right 
of  way — Condemnation — Embankments  over  ten  feet 
submit  to  county  board.  Persons  desirous  to  construct 
and  maintain  reservoirs  for  the  purpose  of  storing  water, 
shall  have  the  right  to  take  from  any  of  the  natural 
streams  of  the  state  and  store  away  any  unappropriated 
water  not  needed  for  immediate  use  for  domestic  or 
irrigating  purposes  ;  to  construct  and  maintain  ditches 


IRRIGATION   LAWS.  77 

for  carrying  such  water  to  and  from  such  reservoir,  and 
to  condemn  lands  for  such  reservoirs  and  ditches,  in  the 
same  manner  provided  by  lav/  for  the  condemnation  of 
land  for  right  of  way  for  ditches  ;  Provided,  No  reser- 
voir with  embankments  or  a  dam  exceeding  ten  feet  in 
height  shall  be  made  without  first  submitting  the  plans 
thereof  to  the  county  commissioners  of  the  county  in 
which  it  is  situated,  and  obtaining  their  approval  of 
such  plans.  L.  '79,  pp.  106-107,  sec.  38;  G.  S.  '83,  p. 
564,  sec.  1724. 

1.  See  section  2460. 

2.  The  constitution  and  statute  recognize  the  right 
to  construct  and  maintain  reservoirs.     Larimer  Co.  R. 
Co.  v.  People,  ex  rel.,  8  Colo.,  615  (1885);  see  also  sec. 
2256,  notes. 

Section  2271.  Conducting  water  in  natural  streams — 
Taking  out — Allowance  for  seepage — How  determined. 
The  owners  of  any  reservoir  may  conduct  the  water 
therefrom  into  and  along  any  of  the  natural  streams  of 
the  state,  but  not  so  as  to  raise  the  waters  thereof  above 
ordinary  high- water  mark,  and  may  take  the  same  out 
again  at  any  point  desired,  without  regard  to  the  prior 
rights  of  others  to  water  from  said  stream  ;  but  due 
allowance  shall  be  made  for  evaporation  and  scapage 
(seepage),  the  amount  to  be  determined  by  the  commis- 
sioners of  irrigation  of  the  district  ;  or,  if  there  are  no 
such  commissioners,  then  by  the  county  commissioners 
of  the  county  in  which  the  water  shall  be  taken  out  for 
use.  L.  '79,  p.  107,  sec  39;  G.  S.  '83,  p.  564,  sec.  1725. 

Section  2272.  Liability  of  owners  for  damages — 
The  owners  of  the  reservoirs  shall  be  liable  for  all  dam- 
ages arising  from  leakage  or  overflow  of  the  waters 
therefrom,  or  by  floods  caused  by  breaking  of  the 
embankments  of  such  reservoirs.  L.  '79,  p.  107,  sec.  40; 
G.  S.  '83,  p.  564,  sec.  1726. 

1.  As  to  negligence  and  right  of  action  without 
proving  same,  see  decisions  under  sec.  3713  ;  see  also- 
sec.  571,  and  notes  and  sees.  2274,  2282  and  notes. 

2.  No  dam  to  overflow  roads,  sec.  3961. 


78  IRRIGATION   LAWS. 

Section  2273.  Right  to  place  wheels  on  streams — 
Conditions.  All  persons  on  the  margin,  brink,  neigh- 
borhood or  precinct  of  any  stream  of  water,  shall  have 
the  right  and  power  to  pla*ce  upon  the  bank  of  said 
stream  a  wheel,  or  other  machine  for  the  purpose  of 
raising  water  to  the  level  required  for  the  purpose  of  irri- 
gation, and  the  right  of  way  shall  not  be  refused  by  the 
owner  of  any  tract  of  land  upon  which  it  is  required, 
subject,  of  course,  to  the  like  regulations,  as  required  for 
ditches,  and  laid  down  in  sections  hereinbefore  enumer- 
ated. Iy.  '61,  pp.  68,  69,  sec.  8;  R.  S.  '68,  p.  364,  sec.  6; 
G.  L.  '77,  p.  516,  sec.  1377;  G.  S.  '83,  *p.  564,  sec.  1727. 


DIVISION  II. 


DUTIES  OF  OWNERS. 

Section  2274.  Owner  shall  maintain  embankments 
— Tail  ditch.  The  owner  or  owners  of  any  ditch  for 
irrigation  or  other  purposes  shall  carefully  maintain 
the  embankments  thereof,  so  that  the  waters  of  such 
ditch  may  not  flood  or  damage  the  premises  of  others, 
and  shall  make  a  tail  ditch,  so  as  to  return  the  water  in 
such  ditch  with  as  little  waste  as  possible  into  the 
stream  from  which  it  was  taken.  R.  S.  '68,  p.  364,  sec. 
7;  amended  Iy.  '72,  p.  144,  sec.  i;  Iy.  '76,  p.  78,  sec.  2; 
G.  S.  '83,  pp.  564,  565,  sec.  1728. 

When  water  to  be  kept  flowing  and  how  ditches  to 
be  kept  in  repair,  sec.  2287,  2288;  see  also  sec.  571  anti; 
royalty,  bonus,  etc.,  sec.  2304;  see  as  to  the  liability  of 
owner  of  ditch  sees.  2272,  2282  and  notes.  When  neg- 
ligence need  not  be  proved,  see  sec.  2272  and  note  and 
sec.  3713,  note. 

2.  This  section  with  sec.  2278  imposes  upon  the 
owner  of  every  ditch  the  duty  to  keep  the  ditch  in  such 
good  condition  and  repair  that  the  water  from  the  same 
cannot  readily  escape  therefrom  to  the  injury  of  any 
property.  Greeley  Irr.  Co.  v.  House,  24  Pac.  Rep.,  330 
(1890),  14  Colo. 


IRRIGATION   LAWS.  79 

3.  A  ditch  company  is  liable  for  damages  caused 
by  allowing  the  water  of  a  ditch  to  overflow  the  lands 
of  others.  Id. 

'4.  The  liability  of  ditch  owners  under  this  section 
for  damages  caused  by  ditches  overflowing,  arises  from 
their  failure  to  exercise  ordinary  care  in  preventing 
the  escape  of  the  water.  Id. 

5.  A  remedy  may  be  had  in  damages  for  injuries 
resulting  from  an  exercise  of  lawful  powers  in  an  im- 
proper, careless  or  negligent  manner.  Id. ,  Ditch  Co.  v. 
Anderson,  8  Colo.,  143  (1884);  Water  Co.  v.  Middaugh, 
12  Id.,  440,  1889. 

6  Ditch  owners  who  are  grossly  negligent  in 
keeping  their  ditches  in  repair,  cannot  be  permitted  to 
take  refuge  under  the  plea  of  unavoidable  accident. 
Greeley  Irr.  Co.  v.  House,  24  Pac.  Rep.,  331  (1890),  14 
Colo. 

7.  The  owners  of  a  ditch  who  permit  the  water 
to  overflow  the  banks  of  the  ditch  and  flood  the  lands 
of  another,  where  they  had  been  warned  that  the  ditch 
was  running  too  full  and  that  the  water  was  in  danger  of 
escaping  unless  the  flow  was  diminished,  are  liable  for 
all  damages  so  caused.  Id. 

Section  2275.  Vested  rights  of  mill  and  ditch 
owners.  Nothing  in  this  chapter  contained  shall  be  so 
construed  as  to  impair  the  prior  vested  rights  of  any 
mill  or  ditch  owner  or  other  person  to  use  the  waters  of 
any  such  water  course.  L.  '61,  p.  69,  sec.  10;  amended 
R.  S.  '68,  p.  364,  sec.  8;  G.  S.  '77,  p.  516,  sec.  1379; 
G.  S.  '83,  p.  565,  sec.  1729. 

i.     See  sec.  571  and  notes. 

Section  2276.  Crossing  highways — Bridge.  Any 
ditch  company  constructing  a  ditch,  or  any  individual 
having  ditches  for  irrigation,  or  for  other  purposes, 
whenever  the  same  be  taken  across  any  public  highway  or 
public  traveled  road,  shall  put  a  good  substantial  bridge, 
not  less  than  fourteen  feet  in  breadth,  over  such  water- 
course where  it  crosses  said  road.  R.  S.  '68,  p.  364, 


80  IRRIGATION   LAWS. 

sec.  10;  G.  L.  '77,    pp.    516,    517,   sec.  1381;  G.  S.  '83, 
p.  565,  sec.  1730. 

i.     Canals  to  be  covered  when.     Sec.  2278. 

Section  2277.  Ditch  must  be  bridged  in  three  days 
—  Duty  of  supervisor.  When  any  such  ditch  or  water- 
course shall  be  constructed  across  any  public  traveled 
road,  and  not  bridged  in  three  days  thereafter,  it  shall  be 
the  duty  of  the  supervisor  of  the  road  district  to  put  a 
bridge  over  said  ditch  or  water-course,  of  the  dimensions 
specified  in  section  ten  of  this  chapter,  and  call  on  the 
owner  or  owners  of  the  ditch  to  pay  the  expenses  of  con- 
structing such  bridge.  R.  S.  '68,  p.  364,  sec.  n;  G. 
L.  '77.  P-  5J7>  sec-  !382;  G.  S.  '83,  p.  565,  sec.  1731. 


Section  10  referred  to  in  last  above  section  is  section 
2276  of  this  chapter. 

2.     Supervisor  is    road    overseer.     Sees.    3952  and 
3962. 

Section  2278.  Canals  and  ditches  —  When  and  by 
whom  covered.  That  every  corporation  and  company, 
whether  created  by  special  act  or  organized  under  the 
•  general  incorporation  laws  of  this  state,  and  every  part- 
nership, person  or  persons  who  now,  or  may  at  any  time 
hereafter,  own  or  control  any  canal  or  ditch,  or  any  part 
thereof,  being  two  feet  in  width  or  over,  and  carrying 
water  to  the  depth  of  twelve  inches  or  over,  which  ca- 
nal or  ditch,  or  any  part  thereof,  is  within  the  corporate 
limits  of  any  city  denominated  in  the  law  as  of  first 
class,  or  any  city  existing  by  special  charter  of  a  popula- 
tion equal  to  or  exceeding  said  cities  of  first  class,  or 
any  of  the  additions  thereto,  shall,  at  their  own  expense, 
within  sixty  flays  after  this  act  shall  have  taken  effect, 
confine,  flume  and  cover  over  all  or  any  part  of  such  ca- 
nal or  ditch,  whether  located  on  or  across  private  prop- 
erty, public  highways  or  alleys  in  said  city  or  additions 
thereto,  in  a  reasonable  and  sufficient  manner,  and  with 
such  materials  as  will  render  such  fluming  or  covering 
safe  and  a  sure  protection  to  the  .lives  and  property  of 
the  inhabitants  of  that  city;  and  any  such  corporation, 
company,  partnership,  person  or  persons,  shall  at  all 
times  thereafter  keep  and  maintain  any  and  all  such 


IRRIGATION   LAWS.  8 1 

structures  confining,  fluming  and  covering  of  such  canal 
or  ditch  in  good  order  and  repair,  at  their  own  expense. 
L.  '87,  p.  65,  sec.  i. 

Section  2279.  Head  to  be  latticed.  Such  corpora- 
tion, company,  partnership,  person  or  persons,  shall,  at 
their  own  expense,  safely  and  securely  lattice  or  slat  the 
head  of  such  flume  or  covering  with  proper  materials, 
so  that  persons  or  animals  cannot  accidentally  enter 
such  flume  or  covering  at  the  head  thereof,  and  pass  or 
be  carried  down  the  current  of  said  canal  or  ditch,  and 
shall  thereafter  maintain  and  keep  the  same  in  good 
order  and  repair  at  their  own  cost  and  expense.  L.  '87, 
p.  66,  sec.  2. 

Section  2280.  Penalty  for  failure  or  refusal — Pro- 
viso. If  any  such  corporation,  company,  partnership, 
person  or  persons,  shall  fail  or  refuse  to  comply  with  any 
of  the  provisions  of  the  two  preceding  sections,  such  cor- 
poration, company,  partnership,  person  or  persons,  shall 
forfeit  and  pay  to  the  county,  for  the  use  of  the  common 
school  fund,  the  sum  of  fifty  dollars  for  each  and  every 
day  such  failure  or  refusal  shall  continue,  to  be  recov- 
ered by  a  civil  action  in  the  name  of  the  people  of  the 
state  of  Colorado  in  any  court  of  competent  jurisdiction; 
Provided,  That  nothing  in  this  act  shall  be  construed  to 
bar  an  action  for  special  damages  by  any  person  who 
shall  have  suffered  such  damages  by  reason  of  any  fail- 
ure to  comply  with  any  of  the  provisions  of  this  act.  L/. 
'87,  p.  66,  sec.  3. 

Section  2281.  Proceedings  against  owner  for  pay- 
ment— Damages.  If  the  owner  or  owners  of  such  ditch 
refuse  to  pay  the  bill  of  expenses  so  presented  the  super- 
visor may  go  before  any  justice  of  the  peace  in  the 
township  or  precinct,  and  make  oath  to  the  correctness 
of  the  bill  and  that  the  owner  or  owners  of  the  ditch 
refuse  payment;  and  thereupon  such  justice  of  the 
peace  shall  issue  a  summons  against  such  owner  or 
owners,  requiring  him  or  them  to  appear  and  answer  to 
the  complaint  of  such  supervisor  in  an  action  of  debt 
for  the  amount  sworn  to  be  due,  such  summons  to  be 
made  returnable  and  served,  and  proceedings  to  be  had 
thereon  as  in  other  cases;  and  in  case  judgment  shall  be 

«— I.  L. 


82  IRRIGATION    LAWS. 

given  against  such  owner  or  owners  the  justice  shall 
assess,  in  addition  to  the  amount  sworn  to  be  due  as 
aforesaid,  the  sum  of  ten  dollars,  as  damages  arising 
from  the  delay  of  such  owner  or  owners,  such  judgment 
to  be  collected  as  in  other  cases,  and  to  be  a  fund  in  the 
hands  of  the  supervisor  ol  roads,  for  the  repair  of  roads 
in  such  precinct  or  district.  R.  S.  '68,  p.  365,  sec.  12; 

G.  L.  '77,  P-  5i7,  sec-  1383;  G-  s-  '83,  P-  565, 
sec.  1732. 

1.  See  "Roads  and  Highways,"  chap.  108. 

2.  The  Supervisor,  sees.  3952,  3962. 

Section  2282.  Owner  of  ditch  must  prevent  waste. 
The  owner  of  any  irrigating  or  mill  ditch  shall  care- 
fully maintain  and  keep  the  embankments  thereof  in 
good  repair,  and  prevent  the  water  from  wasting.  L. 
'76,  p.  78,  sec.  i;  G.  L.  '77,  P-  5l8>  sec-  X385;  G-  S. 
'83,  p.  565,  sec.  1733. 

1.  See  sees.  2272,  2274,  notes. 

2.  See  Greeley  Irr.    Co.    v.    House,  24   Pac.   Rep. , 
330,  (1890),  14  Colo.,  in  notes  to  sees.   571,  2274,  these 
statutes. 

Section  2283.  Running  excess  of  water  forbidden. 
During  the  summer  season  it  shall  not  be  lawful  for 
any  person  or  persons  to  run  through  his  or  their  irrigat- 
ing ditch  any  greater  quantity  of  water  than  is  abso 
lutely  necessary  for  irrigating  his  or  their  said  land, 
and  for  domestic  and  stock  purposes;  it  being  the  intent 
and  meaning  of  this  section  to  prevent  the  wasting  and 
useless  discharge  and  running  away  of  water.  L.  76, 
p.  78,  sec.  2;  G.  L.  '77,  p.  518,  sec.  1386;  G.  S.  '83, 
p.  566,  sec.  1734. 

Section  2284.  Penalty  for  violation  of  this  act. 
Any  person  who  shall  wilfully  violate  any  of  the  pro- 
visions of  this  act  shall,  on  conviction  thereof  before 
any  court  having  competent  jurisdiction,  be  fined*in  a 
sum  of  not  less  than  one  hundred  (100)  dollars.  Suits 
for  penalties  under  this  act  shall  be  brought  in  the  name 
of  the  people  of  the  state  of  Colorado.  L.  '76,  p.  78, 


IRRIGATION   LAWS.  83 

sec.  3;  G.  L.  '77,  p.    518,    sec.    1387;  G.  S.  '83,  p.  566, 
sec.  1735. 

i.      See  "Penalties,"  sec.  3963. 

Section  2285.  Owners  keep  headgate. — Size  of 
timbers.  That  the  owner  or  owners  of  every  irrigating 
ditch,  flume  or  canal,  in  this  state  shall  be  required  to 
erect  and  keep  in  good  repair  a  headgate  at  the  head  of 
their  ditch,  flume  or  canal.  Such  headgate,  together 
with  the  necessary  embankments,  shall  be  of  sufficient 
height  and  strength  to  control  the  water  at  all  ordinary 
stages.  The  frame  work  of  such  headgate  shall  be  con- 
tructed  of  timber  not  less  than  four  inches  square,  and 
the  bottom,  sides,  and  gate  or  gates,  shall  be  of  plank 
not  less  than  two  inches  in  thickness.  L.  '81,  p.  165, 
sec.  i;  G.  S.  '83,  p.  566,  sec.  1736. 

Section  2286.  Liability  of  owner  for  neglect, 
refusal.  Owners  of  all  ditches  shall  be  liable  for  all 
damages  resulting  from  their  neglect  or  refusal  to  com- 
ply with  the  provisions  of  section  one  of  this  act.  L. 
'81,  p.  165,  sec.  2;  G.  S.  '83,  p.  566,  sec.  1737. 

i.  Section  one  referred  to  in  this  section  is  section 
2285  hereof. 

Section  2287.  When  water  shall  be  kept  flowing  in 
ditches — Proviso.  Every  person  or  company  owning 
or  controlling  any  canal  or  ditch  used  for  the  purposes 
of  irrigation  shall,  during  the  time  from  April  15  to 
November  i,  in  each  year,  keep  a  flow  of  water  therein, 
so  far  as  may  be  reasonably  practicable  for  the  purpose 
of  irrigation,  sufficient  to  meet  the  requirements  of  all 
such  persons  as  are  properly  entitled  to  the  use  of  water 
therefrom,  to  the  extent,  if  necessary,  to  which  such 
person  may  be  entitled  to  water,  and  no  more  ;  Provided, 
however,  That  whenever  the  rivers,  or  public  streams, 
or  sources  from  which  water  is  obtained,  are  not  suffi- 
ciently free  from  ice,  or  the  volume  of  water  therein  is 
too  low  and  inadequate  for  that  purpose,  then  such  canal 
or  ditch  shall  be  kept  with  as  full  a  flow  of  water 
therein  as  may  be  practicable,  subject,  however,  to  the 
rights  of  priorities  from  the  streams  or  other  \sources,  as 


84  IRRIGATION   LAWS. 

provided  by  law,  and  the  necessity  of  cleaning,  repair- 
ing and  maintaining  the  same  in  good  condition  L,. 
•'87,  p.  304,  sec.  I. 

Section  2288.  Ditches  are  to  be  kept  in  repair — 
Outlets.  The  owners  or  persons  in  control  of  any  canal 
or  ditch  used  for  irrigating  purposes  shall  maintain  the 
same  in  good  order  and  repair,  ready  to  receive  water  by 
April  15,  in  each  year,  so  far  as  can  be  accomplished  by 
the  exercise  of  reasonable  care  and  diligence,  and  shall 
construct  the  necessary  outlets  in  the  banks  of  the  canal 
or  ditch  for  a  proper  delivery  of  the  water  to  persons 
having  paid-up  shares,  or  who  have  rights  to  the  use  of 
water;  Provided,  however,  That  a  multiplicity  of  out- 
lets in  the  canal  or  ditch  shall  at  all  times  be  avoided, 
so  far  as  the  same  shall  be  reasonably  practicable,  and  the 
location  of  the  same  shall  be  under  the  control  of,  and 
shall  be  at  the  most  convenient  and  practicable  points  con- 
sistent with  the  protection  and  safety  of  the  ditch  for  the 
distribution  of  water  among  the  various  claimants 
thereof ;  and  such  location  shall  be  under  the  control  of 
a  superintendent.  L.  '87,  p.  305,  sec.  2. 

Section  2289.  Superintendent  to  measure  water. 
It  shall  be  the  duty  of  those  owning  or  controlling  such 
canals  or  ditches,  to  appoint  a  superintendent,  whose 
duty  it  shall  be  to  measure  the  water  from  such  canal  or 
ditch  through  the  outlets,  to  those  entitled  thereto 
according  to  his  or  her  pro  rata  share.  L.  '87,  p.  305, 
sec.  3. 

Section  2290.  Penalty  for  refusal  or  neglect  to 
deliver  water.  Any  superintendent,  or  any  person  hav- 
ing charge  of  the  said  ditch,  who  shall  wilfully  neglect 
or  refuse  to  deliver  water,  as  in  this  act  provided,  or  any 
person 'or  persons  who  shall  prevent  or  interfere  with 
the  proper  delivery  of  water  to  the  person  or  persons 
having  the  right  thereto,  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  subject  to 
a  fine  of  not  less  than  ten  nor  more  than  one  hundred 
dollars  for  each  offense,  or  imprisonment  not  exceeding 
one  month,  or  by  both  such  fine  and  imprisonment;  and 
the  money  thus  collected  shall  be  paid  into  the  general 
fund  of  the  county  in  which  the  misdemeanor  has  been 


IRRIGATION   LAWS.  85 

committed;  and  the  owner  or  owners  of  such  ditches 
shall  be  liable  in  damages  to  the  person  or  persons  de- 
prived of  the  use  of  the  water  to  which  they  were 
entitled,  as  in  this  act  provided.  L.  '87,  p.  305,  sec.  4. 

Section  2291.  Water  commissioner  to  promptly 
measure  water.  Any  water  commissioner,  or  his  dep- 
uty, or  assistant,  who  shall  wilfully  neglect  or  refuse, 
after  being  called  upon  in  accordance  with  section  1758 
of  the  general  statutes  of  the  state,  to  promptly  measure 
water  from  the  stream,  or  other  source  of  supply,  into 
the  irrigating  canals  or  ditches,  in  his  district,  accord- 
ing to  their  respective  priorities,  to  the  extent  to  which 
water  may  be  actually  necessary  for  the  irrigation  of 
lands  under  such  canals  or  ditches,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  subject  to  the 
same  penalty  as  provided  in  sec.  4  of  this  act.  L,.  '87, 
p.  305,  sec.  5. 

1.  Sec.  4  referred  to  is  sec.  2290  hereof. 

2.  Sec.  1758  referred  to  is  sec.  2392  hereof. 

Section.  2292.  Duties  of  justices  of  the  peace. 
In  all  cases  declared  misdemeanors  by  this  act,  any  jus- 
tice of  the  peace  of  the  county  in  which  the  offense  was 
committed,  may,  upon  complaint  being  made,  as  is  now 
required  by  law,  issue  a  warrant  directed  to  any  proper 
officer  of  the  county  for  the  arrest  of  any  person  so 
charged  with  any  such  misdemeanor,  and  upon  the 
arrest  of  such  person  or  persons,  the  justice  of  the  peace 
before  whom  such  person  or  persons  may  be  brought 
for  trial,  shall  hear  and  determine  the  cause,  and,  if  he 
find  the  accused  guilty,  shall  assess  the  fine,  and  if 
imprisonment  be  a  portion  of  the  sentence,  then  to  fix 
the  term  of  imprisonment,  or  both,  as  provided  in  sec- 
tion 4  of  this  act;  Provided,  The  accused  may  have  a 
trial  by  jury  which  shall  be  summoned  as  in  cases  before 
justices  of  the  peace  for  assault  and  battery.  L,.  '87, 
p.  306,  sec.  6. 

Section  2292. 

Sec.  4  referred  to  is  sec.  2290  hereof. 


i. 


86,  IRRIGATION   LAWS. 

Section  2293.  Erect  and  maintain  headgates.  All 
persons,  associations  or  corporations  who  have  hereto- 
fore or  who  may  hereafter  divert  water  for  purposes  of 
irrigation  from  any  of  the  public  streams  of  the  state 
shall  erect  and  maintain  headgates  and  wastegates  in 
connection  therewith,  and  in  case  of  failure  or  neglect 
or  refusal  to  do  so  after  five  days'  notice  has  been  given 
by  the  water  commissioner  or  state  engineer,  then  said 
headgates  shall  be  constructed  by  the  water  commis- 
sioner of  the  district  within  which  said  ditch,  canal  or 
conduit  may  be  located,  and  if,  upon  demand,  the 
owner  or  owners  of  said  ditch,  canal  or  conduit  shall 
neglect  or  refuse  to  pay  the  expenses  thereof,  then  the 
said  water  commissioner  shall  take  such  proceedings  to 
recover  the  same  as  is  now  provided  for  by  sections 
1730,  1731  and  1732  of  the  General  Statutes  of  1883  in 
the  case  of  failure  to  build  and  maintain  bridges.  L. 
'89,  p.  161,  sec.  i. 

i.  Sees.  1730,  1731  and  1732,  referred  to,  are 
sees.  2276,  2277  and  2281,  respectively  hereof. 

Section  2294.  Keep  suitable  locks  and  fastenings 
on  headgates.  All  persons,  associations  or  corpora- 
tions shall  put  and  keep  suitable  locks  and  fastenings 
on  their  headgates,  where  water  is  conducted  from  the 
public  streams  or  heads  of  supply,  and  if  said  persons, 
associations  or  corporations  refuse  or  neglect  to  provide 
locks  and  suitable  fastenings  for  said  headgates  after 
five  days'  notice  by  the  water  commissioner  of  the  dis- 
trict, or  by  the  state  enginer,  it  is  made  the  duty  of  the 
water  commissioner  of  the  water  district  and  its  super- 
intendent to  provide  suitable  locks  and  fastenings,  and 
if  the  owner  or  owners  of  said  ditch,  canal  or  conduit 
shall  neglect  or  refuse  to  pay  the  expenses  thereof  the 
water  commissioner  shall  take  such  proceedings  to 
recover  the  same  as  are  provided  in  sec.  i  of  this  act, 
the  keys  of  said  locks  to  be  under  the  control  and  in  the 
possession  of  the  water  commissioner  of  the  district 
during  the  season  of  irrigation  or  domestic  distribution 
of  water.  L,.  '89,  p.  161,  sec.  2. 

i.     Sec.  i,  referred  to,  is  sec.  2293  hereof. 


IRRIGATION   LAWS.  87 

DIVISION     III. 


RATES  OF   CHARGES   FOR  WATER. 

Section  2295.  Regulating  charges — Petition — Affi- 
davits—  Proceedings  before  commissioners — Notice — 
Service — Evidence — Depositions.  The  county  commis- 
sioners of  eaclj  county  shall,  at  their  regular  January 
session  in  each  year,  hear  and  consider  any  and  all  ap- 
plications which  may  be  made  to  them  by  any  party  or 
parties  interested  in  procuring  water  for  irrigation  by 
purchase  from  any  ditch  or  reservoir  furnishing  and  sell- 
ing water,  or  proposing  to  furnish  water  for  sale,  the 
whole  or  upper  part  of  which  shall  lie  in  such  county, 
which  application  shall  be  supported  by  such  affidavit 
or  affidavits  as'the  applicant  may  see  proper  to  present, 
showing  reasonable  cause  for  such  board  to  proceed  to 
fix  the  price  of  water  to  be  thereafter  sold  from  such 
ditch  or  reservoir  ;  and  (if)  such  board  of  commissioners 
shall,  upon  examination  of  such  affidavit  or  affidavits, 
or  from  the  oaths  of  witnesses  in  addition  thereto,  find 
that  the  facts  sworn  to  show  the  application  to  be  in 
good  faith,  and  that  there  is  reasonable  grounds  to  be- 
lieve that  unjust  prices  are,  or  are  likely  to  be,  charged  for 
water  from  such  ditch  or  reservoir,  they  shall  enter  an 
order  fixing  a  day,  not  sooner  than  forty  days  thereafter, 
nor  later  than  the  third  day  of  the  (next)  regular  session 
of  their  board,  when  they  will  hear  all  parties  directly 
or  indirectly  interested  in  said  ditch  or  reservoir,  or  in 
procuring  water  therefrom  for  irrigation,  who  may  ap- 
pear, |as  well  as  all  testimony  by  witnesses,  or  depo- 
sitions taken  on  notices  as  hereinafter  provided  touching 
the  said  ditch  or  reservoir,  and  the  cost  of  furnishing 
water  therefrom,  at  which  time  all  persons  or  corpora- 
tions interested  in  said  ditch  or  reservoir,  as  well  as  all 
interested  in  obtaining  water  therefrom,  or  in  lands 
which  may  be  irrigated  therefrom,  may  appear  by  them- 
selves, their  agents  or  attorneys,  and  said  commissioners 
shall  then  proceed  to  take  action  in  the  matter  of  fixing 
such  price  of  water,  Provided,  The  applicant  shall,  within 
ten  days  from  the  time  of  entering  such  order,  cause  a 


88  IRRIGATION   LAWS. 

copy  thereof,  duly  certified,  to  be  delivered  to  the  owner 
of  such  ditch  or  reservoir,  if  it  be  owned  by  one  person, 
or  each  of  the  owners,  if  it  be  owned  by  several  persons, 
or  to  the  president,  secretary  or  treasurer  of  the  com- 
pany, if  it  belongs  to  a  corporation  or  association  having 
such  officers;  or,  if  such  owner  cannot  be  found,  he  shall 
cause  such  copy  to  be  left  at  his  usual  place  of  residence 
with  some  person  or  member  of  his  family  residing 
there,  and  over  fourteen  years  of  age,  and  if  such  ditch 
officer  cannot  be  found,  he  shall  cause  such  copy  to  be 
left  at  the  office  or  place  of  business  of  the  company  of 
which  he  is  such  officer,  or  at  his  residence,  if  such  com- 
pany have  no  place  of  business,  and  if  such  ditch  is 
owned  by  several  owners,  not  an  incorporated  company, 
it  shall  be  sufficient  to  serve  such  notice  by  delivering 
one  such  copy  each  to  a  majority  of  them,  and  such  ap- 
plicant shall  make  affidavit  of  the  manner  in  which  such 
copy  or  copies  have  been  served.  Depositions  men- 
tioned in  section  one  hereof,  to  be  used  before  said  com- 
missioners, shall  be  taken  before  any  officer  in  the  state 
authorized  by  law  to  take  depositions,  upon  reasonable 
notice  being  given  to  the  opposite  party  of  the  time 
and  place  of  taking  such  depositions.  L.  '79,  pp.  94- 
96,  sec.  i;  G.  S.  '83,  pp.  566,  567,  sec.  1738. 

1.  Fixing  rates.     Sec.  2298,  etc. 

2.  Rates  fixed  by  county  commissioners.    Sec.  570. 

4.  The  title  to  this  act  is  constitutional  and  em- 
braces the  fixing  of  water  rates.  Golden  Canal  Co.  v. 
bright,  8  Colo.,  147,  etc.  (1884.) 

4.  The  purpose  and  substance  of  this  section  is 
constitutional.     Id. 

5.  As  to  adjudicating  water  rights.     See  sec.  2399, 
etc;  also  const.,   art.    XVI.,  sec.   6,    notes  48,  9  and  93, 
etc. 

Section  2296.  Powers  and  duties  of  board — Sub- 
poenas— Compulsion — Adjournments  —  Examinations — 
Facts — Order — Proviso  as  to  contracts.  Said  board  shall 
hear  and  examine  all  legal  testimony  or  proofs  offered  by 
any  of  the  parties  interested  as  before  mentioned,  as 


IRRIGATION    LAWS.  89 

well  concerning  the  value  of  the  construction  of  such 
ditch  or  reservoir  as  the  cost  and  expense  of  maintain- 
ing and  operating  the  same,  and  all  matters  which  may 
affect  the  just  price  and  value  of  water  to  be  furnished 
therefrom;  and  they  shall  have  power  to  issue  subpoenas 
to  witnesses  and  compel  their  attendance,  which  subpoenas 
shall  be  served  by  the  sheriff  of  the  proper  county  when 
required,  and  also  to  compel  the  production  of  books 
and  papers  required  for  evidence  in  as  full  and  ample  a 
manner  as  the  district  court  now  has.  They  may  ad- 
journ the  hearing  from  time  to  time  to  further  the  ends 
of  justice  or  suit  the  general  convenience  of  parties. 
Upon  hearing  an  [and]  considering  all  the  matters  and 
facts  involved  in  the  case,  the  board  of  commissioners 
shall  enter  an  order  naming  and  describing  the  ditch  or 
reservoir  with  sufficient  certainty,  and  fixing  a  just 
price  upon  all  water  to  be  hereafter  sold,  which  price 
shall  not  be  thereafter  changed  oftener  than  once  in  two 
years;  Provided^  That  no  price  so  fixed  shall  effect 
[affect]  the  rights  of  the  parties,  or  their  lawful  assi- 
gnees or  grantees,  who  may  have  contracts  with  the 
company,  association  or  person  owning  such  ditch  or 
reservoir,  or  their  lessees,  grantees  or  successors,  nor 
the  rights  of  such  owners,  lessees  or  grantees  under 
such  contract,  nor  shall  it  in  any  way  affect  or  hinder 
the  making  of  such  contract.  L.  '79,  p.  96,  sec.  2;  G. 
S.  '83,  pp.  567,  568,  sec.  1739. 

1.  When  compelled   to  furnish  water,   rates,   sec. 
570.    '  The  constitution  gives  the  county  commissioners 
power  to  fix  rates.     Const,  art.  XVI. ,  sec.  8. 

2.  The  substance  and  purpose  of    this  section  is 
constitutional.     Golden   Canal   Co.   v.  Bright,  8   Colo., 

147  (1884). 

3.  There   is    no  appeal  from  the  decision   of   the 
commissioners.     Id.,  155. 

Section  2297.  Right  to  continue  purchasing 
water — Tender  of  price — Stockholders — Rights.  Any 
person  or  persons,  acting  jointly  or  severally,  who  shall 
have  purchased  and  used  water  for  irrigation  for  lands 
occupied  by  him,  her  or  them,  from  any  ditch  or  reser- 


90  IRRIGATION   LAWS. 

voir,  and  shall  not  have  ceased  to  do  so  for  the  purpose 
or  with  the  intent  to  procure  water  from  some  other 
source  of  supply,  shall  have  a  right  to  continue  to  pur- 
chase water  to  the  same  amount  for  his,  her  or  their 
lands,  on  paying  or  tendering  the  price  thereof  fixed  by 
the  county  commissioners  as  above  provided  ;  or,  if  no 
price  shall  have  been  fixed  by  them,  the  price  at  which 
the  owners  of  such  ditch  or  reservoir  may  be  then  sell- 
ing water,  or  did  sell  water  during  the  then  last  preced- 
ing year.  This  section  shall  not  apply  to  the  case  of 
those  who  may  have  taken  water  as  stockholders  or  share- 
holders after  they  shall  have  sold  or  forfeited  their  shares 
or  stock,  unless  they  shall  have  retained  a  right  to  pro- 
cure such  water  by  contract,  agreement  or  understand- 
ing, and  use  between  themselves  and  the  owners  of  such 
ditch,  and  not  then  to  the  injury  of  other  purchasers  of 
water  from  or  shareholders  in  (the)  same  ditch.  L.  '79, 
pp.  96,  97,  sec.  3;  G.  S.  '83,  p.  568,  sec.  1740. 

1.  When  compelled  to  furnish,    sec.    570;  Const. 
Colo.,  art.  XVI.,  sec.  8.     Receiving  money  or  other  val- 
uable thing,  etc.,  as  a  prerequisite  to  granting  water 
illegal ;    penalty,    sec.    2304,    etc.     Superintendent    for 
water  division  ;  appointment  of,  etc.,  sec.  2447,  etc. 

2.  This  section  confers  a  confirmative  right  upon 
the  prior  purchaser  who  has  complied  with  the  provisions 
thereof,  to  continue  his  purchase  of  water,  and  he  can- 
not be  required  as  a  condition  precedent  to  the  exercise 
of  this  right,    to  acknowledge  the  equity   of  all  rules 
adopted  by  the  ditch  company;  Golden  Canal  Co.   v. 
Bright,  8  Colo.,  149,  (1884.) 

3.  Whether  the  statute   imposes   upon  the  ditch 
owner  the  duty  of  keeping  sufficient  water  in  the  ditch, 
when   possible,  to  supply  prior  purchasers,  quere ;  Id. , 
152- 

4.  A  prior  purchaser  is  entitled  to  continue  to  pur- 
chase, although  he  may  be  able  to  obtain  water  from 
some  other  source.     Id. 

5.  This  section  applies  only  to  those  parties  who 
have  exercised  the  right  to  use  water  for  their  lands,  and 
is  an  assurance  of  the  right  to  continue  the  use  of  the 


IRRIGATION   LAWS.  91 

water,  and  this  right  may  be  enforced  by  mandamus.  It 
does  not  give  one  who  has  never  had  the  use  of  water 
the  right  to  the  water.  Wheeler  v.  North  Colo.  I.  Co., 
10  Colo.,  595,  (1887);  Golden  Canal  Co.  v.  Bright,  8  Id., 
152  (1884). 

6.  Instance  where  a  shareholder  had  disposed  of  a 
portion   of  his   share   of  stock.     Supply   Ditch    Co.  v. 
Elliott,  10  Colo.,  328  (1887). 

7.  Where    a   party   sues   for   damages   caused  by 
being  restrained   from  using  the  water  from  a  certain 
ditch,  if  it  is  shown  that  he  could  have  obtained  suffi- 
cient water  irom  another  source,  he  will  not  be  entitled 
to  receive   a  greater  sum  than  he  would   have  had  to 
expend   to   obtain   water   from  such  source.     Mack  v. 
Jackson,  9  Colo.,  537  (1886). 

Section  2298.  County  commissioners  hear  and 
consider  applications.  The  county  commissioners  of 
each  county  shall,  at  their  regular  sessions  in  each  year, 
and  at  such  other  sessions  as  they  in  their  discretion 
may  deem  proper,  in  view  of  the  irrigation  and  harvest- 
ing season,  and  the  convenience  of  all  parties  interested, 
hear  and  consider  all  applications  which  may  be  made 
to  them  by  any  party  or  parties  interested  either  in  fur- 
nishing and  delivering  for  compensation  in  any  manner, 
or  in  procuring  for  such  compensation,  water  for  irriga- 
tion, mining,  milling,  manufacturing,  or  domestic  pur- 
poses, from  any  ditch,  canal  or  conduit,  or  reservoir,  the 
whole  or  any  part  of  which  shall  lie  in  such  county. 
Which  application  shall  be  supported  by  such  affidavits 
as  the  applicant  or  applicants  may  present,  showing 
reasonable  cause  for  such  board  of  county  commission- 
ers to  proceed  to  fix  a  reasonable  maximum  rate  of  com- 
pensation fo'r  water  to  be  thereafter  delivered  from  such 
ditch,  canal,  conduit  or  reservoir  within  such  county. 
L.  '87,  p.  291,  sec.  i. 

i.  Prior  to  this  act  the  statute  did  not  authorize 
the  county  commissioners  of  a  given  county  to  establish 
a  maximnin  rate  if  the  head  of  the  canal  was  located  in 
in  another  county;  Wheeler  v.  North  Col.  Irr.  Co.,  10 
Colo.,  583,  (1887). 


92  IRRIGATION    LAWS. 

Section  2299.  Commissioners  appoint  day  for  hear- 
ing parties  interested  in  ditches,  etc.  Every  such  board 
of  commissioners  shall  upon  examination  of  such  affi- 
davit or  affidavits,  or  from  the  oaths  of  witnesses  in 
addition  thereto,  if  they  find  that  the  facts  sworn  to 
show  the  application  to  be  in  good  faith,  and  that  there 
are  reasonable  grounds  to  believe  that  unjust  rates  of 
compensation  are,  or  are  likely  to  be,  charged  or 
demanded  for  water  from  such  ditch,  canal,  conduit  or 
reservoir,  shall  enter  an  order  fixing  a  day  not  sooner 
than  twenty  days  thereafter,  nor  later  than  the  third 
day  of  the  next  regular  session  of  their  board,  when 
they  will  hear  all  parties  interested  in  such  ditch  or 
other  water-works  as  aforesaid,  or  in  procuring  water 
therefrom,  for  any  of  the  said  uses,  as  well  as  ail  docu- 
mentary or  oral  evidence  or  depositions,  taken  accord- 
ing to  law,  touching  the  said  ditch,  or  other  work  as 
aforesaid,  and  the  cost  of  furnishing  water  therefrom. 
L.  '87,  p.  292,  sec.  2. 

Section  2300.  Commissioners  fix  rates — Proviso. 
At  the  time  so  fixed  all  persons  interested,  as  aforesaid, 
on  either  side  of  the  controversy  in  lands  which  may 
be  irrigated  from  such  ditch,  or  other  work  aforesaid, 
may  appear  by  themselves,  their  agents  or  attorneys, 
and  said  commissioners  shall  then  proceed  to  take  action 
in  the  matter  of  fixing  such  rates  of  compensation  for 
the  delivery  of  water;  Provided,  The  applicant  or  appli- 
cants (if  the  application  be  made  by  a  party  or  parties, 
as  aforesaid,  desirous  of  procuring  water)  shall,  within 
ten  days  from  the  time  of  entering  the  said  order  fixing 
the  hearing,  cause  a  copy  of  such  order,  duly  certified, 
to  be  delivered  to  the  owner  or  owners  of  such  ditch, 
canal,  conduit  or  reservoir,  or  to  the  president,  secretary 
or  treasurer  of  the  company,  if  it  be  owned  by  a  cor- 
poration or  association  having  such  officers.  If  any 
such  owner  cannot  be  found  a  copy  shall  be  left  at  his 
usual  place  of  abode,  with  some  person  residing  there 
over  twelve  years  of  age;  and  if  such  officer  of  any  cor- 
poration or  association  cannot  be  found  such  copy  shall 
be  left  at  the  usual  place  of  business  of  the  company  of 
which  he  is  such  officer,  or  at  his  residence  if  such  com- 
pany have  no  place  of  business;  and  if  such  ditch,  or 


IRRIGATION    LAWS.  93 

other  work  aforesaid,  shall  be  owned  by  several  owners 
not  being  an  incorporated  company  it  shall  be  sufficient 
to  serve  such  notice  by  delivering  copies  to  a  majority 
of  them.  If  the  applicant  be  the  owner  or  party  con- 
trolling such  ditch,  canal,  conduit  or  reservoir,  such 
notice  shall  be  given  by  causing  printed  copies  of  such 
order,  in  hand-bill  form,  in  conspicuous  type,  to  be 
posted  securely  in  ten  or  more  public  places  throughout 
the  district  watered  from  such  ditch,  or  other  work 
aforesaid  (if  the  water  be  used  for  irrigation),  and  one 
copy  shall  be  posted  for  every  mile  in  length  of  such 
ditch;  but  if  such  ditch  or  other  work  be  for  the  supply 
of  water  for  milling  or  mining  it  shall  be  sufficient  to 
serve  such  copy  on  the  parties  then  taking  water  there- 
from. The  person  or  persons  making  such  service  or 
posting  such  printed  copies  shall  make  affidavit  of  the 
manner  in  which  the  same  has  been  done,  which  affi- 
davit shall  be  filed  with  the  said  board  of  county  com- 
missioners. Depositions  mentioned  in  sec.  2  hereof,  to 
be  used  before  said  commissioners,  shall  be  taken  before 
any  officer  in  the  state  authorized  by  law  to  take  depo- 
sitions, upon  reasonable  notice  being  given  to  the  oppo- 
site party  of  the  time  and  place  of  taking  the  same.  L,. 
'87,  p.  292,  sec.  3. 

i.  Sec.  2,  referred  to  in  this  section,  is  sec.  2299 
hereof. 

Section  2301.  Commissioners  may  postpone  hear- 
ing— Witnesses — Subpoenas — Court  compel  obedience. 
Said  board  of  commissioners  may  adjourn  or  postpone 
any  hearing  from  time  to  time  as  may  be  found  neces- 
sary, or  for  the  convenience  of  parties,  or  of  public 
business;  and  they  shall  hear  and  examine  all  legal  tes- 
timony or  proofs  offered  by  any  party  interested,  as  afore- 
said, as  well  concerning  the  original  cost  and  present 
value  of  works  and  structure  of  such  ditch,  canal,  con- 
duit or  reservoir,  as  the  cost  and  expense  of  maintaining 
and  operating  the  same,  and  all  matters  which  may 
affect  the  establishing  of  a  reasonable  maximum  rate  of 
compensation  for  water  to  be  furnished  and  delivered 
therefrom;  and  they  may  issue  subpoenas  for  witnesses, 
which  subpoenas  shall  be  served  by  the  sheriff  of  the 


94  IRRIGATION   LAWS. 

county,  who  shall  receive  the  lawful  fees  for  all  such 
service  ;  and  said  board  may  also  issue  a  subpoena  for 
the  production  of  all  books  and  papers  required  for  evi- 
dence before  them.  Upon  hearing  and  considering  all 
the  evidence  and  facts,  and  matters  involved  in  the  case, 
said  board  of  commissioners  shall  enter  an  order  describ- 
ing the  ditch,  canal,  conduit,  reservoir  or  other  work  in 
question,  with  sufficient  certainty,  and  fixing  a  just  and 
reasonable  maximum  rate  of  compensation  for  water  to 
be  thereafter  delivered  from  such  ditch  or  other  work  as 
last  aforesaid,  within  the  county  in  which  such  commis- 
sioners act;  and  such  rate  shall  not  be  changed  within 
two  years  from  the  time  when  they  shall  so  be  fixed, 
unless  upon  good  cause  shown.  The  district  court  of 
the  proper  county,  or  the  judge  thereof  in  vacation,  may, 
in  case  of  refusal  to  obey  the  subpoenas  of  the  board  of 
county  commissioners,  compel  obedience  thereto,  or 
punish  for  refusal  to  obey,  after  hearing,  as  in  cases 
of  attachment  for  contempt  of  such  district  court.  L. 
'87,  p.  293,  sec.  4. 

Section  2302.  False  swearing.  Every  person  who 
shall  swear  or  affirm  falsely  in  any  manner,  or  testify 
falsely  after  being  duly  sworn  or  having  affirmed  as  a 
witness  in  any  proceeding  provided  for  in  this  act,  shall 
be  deemed  guilty  of  perjury,  and  on  conviction  shall  be 
punished  accordingly.  L,.  '87,  p.  294,  sec.  5. 

Section  2303.  Repeal.  All  acts  and  parts  of  acts 
inconsistent  with  the  provisions  of  this  act  are  hereby 
repealed;  but  such  repeal  shall  not  work  any  interference 
with  any  proceeding  by  any  board  of  county  commis- 
sioners now  pending,  saving  that  any  such  proceeding 
may,  at  the  request  of  either  party,  be  carried  on  to 
completion  under  the  provisions  hereof.  L.  '87,  p.  294, 
sec.  6. 

Section  2304.  Royalties  prohibited — Illegal  rate — 
Excess  recovered — Costs.  It  shall  not  be  lawful  for  any 
person  owning  or  controlling,  or  claiming  to  own  or 
control  any  ditch,  canal  or  reservoir,  carrying  or  storing, 
or  designed  for  the  carrying  or  storing  of  any  water 
taken  from  any  natural  stream  or  lake  within  this  state, 
to  be  furnished  or  delivered  for  compensation,  for  irri- 


IRRIGATION   LAWS.  95 

gation,  mining,  milling  or  domestic  purposes,  to  persons 
not  interested  in  such  ownership  or  control,  to  demand, 
bargain  for,  accept  or  receive  from  any  person  who  may 
apply  for  water  for  any  of  the  aforesaid  purposes,  any 
money  or  other  valuable  thing  whatsoever,  or  any 
promise  or  agreement  therefor,  directly  or  indirectly,  as 
royalty,  bonus  or  premium  prerequisite  or  condition 
precedent  to  the  right  or  privilege  of  applying,  or  bar- 
gaining 'for,  or  procuring  such  water.  But  such  water 
shall  be  furnished,  carried  and  delivered  upon  payment 
or  tender  of  the  charges  fixed  by  the  county  commis- 
sioners of  the  proper  county,  as  is,  or  may  be,  provided 
by  law.  Any  and  all  moneys,  and  every  valuable  thing, 
or  consideration  of  whatsoever  kind,  which  shall  be  so 
as  aforesaid,  demanded,  charged,  bargained  for,  ac- 
cepted, received  or  retained  contrary  to  the  provisions 
of  this  section,  shall  be  deemed  and  held  an  additional 
and  corrupt  rate,  charge  or  consideration  for  the  water 
intended  to  be  furnished  or  delivered  therefor,  or  be- 
cause thereof,  and  wholly  extortionate  and  illegal,  and 
when  paid,  delivered  or  surrendered,  may  be  recovered 
back  by  the  party  paying,  delivering  or  surrendering 
the  same  from  the  party  to  whom,  or  for  whose  use  the 
same  shall  have  been  paid,  delivered  or  surrendered,  to- 
gether with  costs  of  suit,  including  reasonable  fees  of 
attorneys  of  plaintiff,  by  proper  action  in  any  court 
having  jurisdiction.  L.  '87,  p.  308,  sec.  i. 

i.  This  section,  to  and  including  sec.  2309,  con- 
stitute what  is  known  as  the  "anti-royalty  act." 

Section  2305.  Penalty  for  collecting  excessive 
rates.  Every  person  owning  or  controlling,  or  claiming 
to  own  or  control,  any  ditch,  canal  or  reservoir,  such  as 
is  mentioned  in  the  first  section  of  this  act,  who  shall 
after  demand  in  writing  made  upon  him  for  the  supply 
or  delivery  of  water  for  irrigation,  mining,  milling  or 
domestic  purposes,  to  be  delivered  from  the  canal,  ditch 
or  reservoir  owned,  possessed  or  controlled  by  him,  and 
after  tender  of  the  lawful  rate  of  compensation  therefor, 
in  lawful  money,  demand,  require,  bargain  for,  accept, 
receive  or  retain  from  the  party  making  such  applica- 
tion any  money  or  other  thing  of  value,  or  any  promise 


96  IRRIGATION   LAWS. 

or  contract,  or  any  valuable  consideration  whatever,  as 
such  royalty,  bonus,  premium,  prerequisite  or  condition 
precedent,  as  is  by  the  provisions  of  this  said  first  sec- 
tion prohibited,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  punished 
by  a  fine  of  not  less  than  one  hundred  dollars  nor  more 
than  five  thousand  dollars,  or  imprisonment  for  a 
term  not  less  than  three  months  nor  more  than  one 
year,  or  both  such  fine  and  imprisonment,  in  the  discre- 
tion of  the  court.  L,.  '87,  p.  309,  sec.  2. 

i.  Sec.  i  referred  to  in  this  section,  is  sec.  2304 
hereof. 

Section  2306.  Refusal  to  deliver  water — Penalty. 
Every  person  owning  or  controlling,  or  claiming  to  own 
or  control  any  ditch,  canal  or  reservoir,  such  as  is  men- 
tioned in  the  first  section  of  this  act,  who  shall  after 
demand  in  writing,  made  upon  him  for  the  supply  or 
delivery  of  water  for  irrigation,  mining,  milling  or 
domestic  purposes,  to  be  delivered  from  the  canal,  ditch 
or  reservoir,  owned,  possessed  or  controlled  by  him, 
and  after  tender  of  the  lawful  rate  of  compensation 
therefor,  in  lawful  money,  refuse  to  furnish  or  carry  and 
deliver  from  such  ditch,  canal  or  reservoir,  any  water  so 
applied  for,  which  water  can  or  may  be,  by  use  of  rea- 
sonable diligence  in  that  behalf,  and  within  the  carry- 
ing or  storage  capacity  of  such  ditch,  canal  or  reservoir, 
be  lawfully  furnished  and  delivered,  without  infringe- 
ment of  prior  rights,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof,  shall  be 
punished  by  fine  "of  not  less  than  one  hundred  dollars, 
nor  more  than  five  thousand  dollars,  or  imprisonment 
for  a  term  of  not  less  than  three  months,  nor  more  than 
one  year,  or  both  such  fine  and  imprisonment  in  the 
discretion  of  the  court.  L.  '87,  p.  309,  sec.  3. 

i.  Section  i  referred  to  in  this  section  is  sec.  2304 
hereof. 

Section  2307.  When  corporation  refuses  to  deliver 
water — Attorney  general  prosecute.  When  any  corpo- 
ration, in  defiance  or  by  attempted  evasion  of  the  pro- 
visions of  this  act,  shall,  after  tender  of  the  compensa- 


IRRIGATION    LAWS.  97 

tion  hereinbefore  provided  for,  refuse  to  deliver  water, 
such  as  is  mentioned  in  the  third  section  of  this  act,  to 
to  any  person  lawfully  entitled  to  apply  therefor,  it 
shall  be  the  duty  of  the  attorney  general,  upon  request 
of  the  county  commissioners  of  the  proper  county,  or 
upon  his  otherwise  receiving  due  notice  thereof,  to  in- 
stitute and  prosecute  to  judgment  and  final  determina- 
tion proceedings  in  quo  warranto,  for  the  forfeiture  of 
the  corporate  rights,  privileges  and  franchises  of  any 
such  corporation  so  offending,  or  by  mandamus  or  other 
proper  proceedings,  to  compel  it  to  its  duty  in  that 
behalf.  L.  '87,  p.  310,  sec.  4. 

i.  Section  3  referred  to  in  this  section  is  sec.  2306 
hereof. 

Section  2308.  "Person"  defined— Liability.  The 
word  "person"  as  used  in  this  act  shall  include  corpora- 
tions and  associations,  and  the  plural  as  well  as  the  sin- 
gular number.  And  every  officer  of  a  corporation,  or 
member  of  an  association  or  co-ownership,  and  every 
agent  violating  any  of  the  provisions  of  this  act  shall  be 
liable  to  restore  the  unlawful  consideration  extorted  and 
be  punishable  under  the  penal  provisions  of  this  act,  the 
same  as  if  the  thing  done  in  disobedience  to  its  pro- 
visions were  done  for  his  own  sole  benefit  and  advantage. 
L.  '87,  p.  310,  sec.  5. 

Section  2309.  Repeal.  All  laws  and  parts  of  laws 
in  conflict  with  any  of  the  provisions  of  this  act  are 
hereby  repealed.  L.  '87,  p.  310,  sec.  6. 


DIVISION  IV. 


WATER   DISTRICTS. 

Section  2310.  Lands  watered  constitute  districts. 
That  the  lands  now  irrigated,  or  which  may  be  hereafter 
irrigated  from  ditches  now  taking  water  from  the  follow- 
ing described  rivers  or  natural  streams  of  the  state  of 
Colorado,  are  hereby  declared  to  constitute  irrigation 
districts.  L.  '79,  p.  97,  sec.  5;  G.  S.  '83,  p.  568,  sec. 
1741. 

7—1.  L. 


98  IRRIGATION   LAWS. 

i.     For  water  divisions,  see  sec.  2440. 

Section  2311.  District  No.  i.  That  water  district 
No.  i  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  that  portion  of  the  South 
Platte  river  between  the  mouth  of  the  Cache  la  Poudre 
river  and  the  west  boundary  line  of  Washington 
county,  and  from  the  streams  draining  into  the  said 
portion  of  the  South  Platte  river.  L.  '79,  p.  97,  sec.  5, 
G.  S.  '83,  p.  568,  sec.  1742;  amended  L.  '87,  p.  303,  sec. 
i;  amended  L.  '89,  p.  212,  sec.  13. 

Section   2312.     District  No.  2.     That  District  No. 

2  shall    consist   of    land  irrigated  from    ditches    taking 
water  from    the  South  Platte  river  and  its  tributaries, 
except  Big  Thompson,  St.  Vrain  and  Clear  Creek,  be- 
tween the  mouth  of  the  Cache  la  Poudre  and  the  mouth 
of  Cherry  creek.     L.   '79,  p.   97,   sec.   7;   G.  S.  '83,  p. 
568,  sec.  1743. 

Section  2313.     District  No.  3.      That   district   No. 

3  shall  consist  of  all  the  lands   irrigated    from   ditches 
taking  water  from  the  Cache  la  Poudre  and  it  tributaries. 
L.  '79,  p.  98,  sec.  8;   G.  S.  '83,  p.  568,  sec.  1744. 

Section   2314.     District  No.  4.     That  district  No. 

4  shall  consist  of   lands  irrigated   from  ditches   taking 
water   from    the  Big  Thompson  and  its  tributaries.     L. 
'79,  p.  98,  sec.  9;   G.  S.  '83,  p.  568,  sec.  1745. 

Section   2315.     District  No.  5.     That  district   No. 

5  shall  consist  of  all  lands  irrigated  from  ditches  taking 
water  from  the  St.  Vrain  creek  and  its  tributaries,  ex- 
cept the  Boulder,  its  tributaries  and  Coal  creek.     L.  '79, 
p.  98,  sec.  10;   G.  S.  '83,  p.  569,  sec.  1746. 

Section  2316.     District   No.  6.     That  district  No. 

6  shall  consist  of  all  lands  irrigated  from  ditches  taking 
water   from    the  Boulder  and  its  tributaries  and   Coal 
creek.       L.    '79,    p.    98,    sec.    n;    G.   S.    '83,    p.    569, 
sec.  1747. 

Section  2317.     District  No.  7.     That  district  No. 

7  shall  consist  of  all  lands  irrigated  from  ditches  taking 
water  from  Clear  creek  and  its   tributaries.     L.  '79,  p. 
98,  sec.  12;  G.  S.  '83,  p.  569,  sec.  1748. 


IRRIGATION   LAWS.  99 

Section  2318.  District  No.  8.  That  district  No. 
8  shall  consist  of  all  lands  irrigated  by  ditches  taking 
water  from  Cherry  creek,  Plum  creek  and  Platte  river 
and  their  tributaries,  except  Bear  creek  above  district 
No.  2  and  below  the  forks  of  the  north  and  south 
branches  of  the  South  Platte  river.  L,.  '79,  p.  98,  sec. 
13;  G.  S.  '83,  p.  569,  sec.  1749. 

Section  2319.  District  No.  9.  That  district  No.  9 
shall  consist  of  all  lands  irrigated  by  ditches  taking 
water  from  Bear  creek  and  its  tributaries.  L.  '79,  p.  98, 
sec.  14;  G.  S.  '83,  p.  569,  sec.  1750. 

Section  2320.  District  No.  10 — New  districts  to 
be  formed  by  governor.  That  district  No.  10  shall  con- 
sist of  all  lands  irrigated  from  ditches  taking  water  from 
the  Fountain  and  its  tributaries;  Provided,  That  said 
district  shall  not  extend  beyond  the  limits  of  HI  Paso 
county. 

Other  irrigation  districts  may  be  formed  from  time 
to  time  by  the  governor  on  petition  of  parties  inter- 
ested. L.  '79,  p.  98,  sec.  15;  G.  S.  '83,  p.  569,  sec  1751. 

i.  Is  this  section  repealed  by  L.  '85,  p.  256  ?  See 
title  and  sees,  i  and  2 ;  also  sec.  2444. 

Section  2321.  Introductory  clause.  That  the  lands 
now,  or  which  may  be  hereafter  irrigated  from  ditches 
or  canals,  taking  water  from  any  of  the  following 
described  rivers,  or  natural  streams  in  the  state  of  Colo- 
rado, are  hereby  declared  to  constitute  irrigation  dis- 
tricts. Iy.  '85,  p.  256,  sec.  3. 

Section  2322.  District  No.  ii<  "Water  district 
No.  ii  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  Arkansas  river  above  water  dis- 
trict No.  12,  and  from  the  streams  draining  into  the  said 
portion  of  the  Arkansas  river."  L.  '85,  pp.  256,  257, 
sec.  4;  amended  L.  '89,  p.  370,  sec.  i. 

Section  2323.  District  No.  12.  That  district  No. 
twelve  (12)  shall  consist  of  all  lands  irrigated  from 
ditches,  or .  canals  taking  water  from  that  part  of  the 
Arkansas  river  lying  in* Fremont  county ;  also  all  lands 


100  IRRIGATION    LAWS. 

irrigated  from  ditches  or  canals  taking  water  from  the 
tributaries  of  said  portion  of  the  Arkansas  river,  except 
Grape  creek  and  its  tributaries.  L,.  '85,  p.  257,  sec.  5. 

Section  2324.  District  No.  13.  That  district  No. 
thirteen  (13)  shall  consist  of  all  lands  irrigated  from 
ditches  or  canals  taking  water  from  Grape  creek  and 
its  tributaries.  Iv.  '85,  p.  257,  sec.  6. 

Section  2325.  Water  district  No.  14.  "Water  dis- 
trict No.  14  shall  consist  of  all  lands  irrigated  by  water 
taken  from  that  portion  of  the  Arkansas  river  situated 
within  the  boundaries  of  Pueblo  county,  and  from  the 
streams  draining  into  the  said  portion  of  the  Arkansas 
river,  except  the  St.  Charles  and '  Huerfano  rivers  and 
their  tributaries,  and  except  also  that  portion  of  the 
Fountain  embraced  in  water  district  No.  10,  and  the 
streams  draining  into  the  said  portion  of  the  Fountain." 
L.  '85,  p.  257,  sec.  7 ;  amended  "L,.  '89,  p.  370,  sec.  2. 

Section  2326.  District  No.  15.  That  district 
number  fifteen  (15)  shall  consist  of  all  lands  irrigated 
from  ditches  or  canals  taking  water  from  the  St.  Charles 
and  its  tributaries.  L.  '85,  p.  257,  sec.  8. 

Section  2327.  District  No.  16.  That  district 
number  sixteen  (16)  shall  consist  of  all  lands  irrigated 
from  ditches  or  canals  taking  water  from  the  Huerfano 
and  its  tributaries.  L.  '85,  p.  257,  sec.  9. 

Section  2328.  Water  district  No.  17.  Water  dis- 
trict No.  17  shall  consist  of  all  lands  irrigated  by 
water  taken  from  that  portion  of  the  Arkansas  river 
below  water  district  No.  14,  and  above  the  mouth  of  the 
Purgatoire  river,  and  from  the  streams  draining  into  the 
said  portion  of  the  Arkansas  river,  except  the  Apishapa 
river  and  its  tributaries.  L.  '85,  p.  257,  sec.  10; 
amended  L.  '89,  p.  370,  sec.  3. 

Section  2329.  ,  District  No.  18.  That  district 
number  eighteen  (18)  shall  consist  of  all  lands  irrigated 
from  ditches  and  canals  taking  water  from  the  Apishapa 
and  its  tributaries.  L.  '85,  p.  257,  sec.  n. 

Section  2330.  District  No.  19.  That  district 
number  nineteen  (19)  shall  consist  of  all  lands  irrigated 


IRRIGATION  LAwaJ  *  "  J  101 


from  ditches  or  canals  taking  water  from  the  Purgatoire 
and    its    tributaries.     L.  '85,  p.  257,  sec.   12. 

Section  2331.  Water  district  No.  20.  Water  district 
number  twenty  shall  consist  of  all  lands  irrigated  by  water 
taken  from  that  portion  of  the  Rio  Grande  above  the 
mouth  of  the  Rio  Conejos,  and  from  the  streams  drain- 
ing into  the  said  portion  of  the  Rio  Grande  including 
Piedra  spring,  Gato  and  San  Francisco  creeks,  and  all 
other  streams  that  would  in  time  of  flood  flow  into  the 
said  portion  of  the  Rio  Grande,  although  at  ordinary 
stages  the  waters  thereof  might  not  flow  upon  the  sur- 
face to  the  Rio  Grande,  except  Alamosa  river  and  its 
tributaries  and  the  La  Jara  and  Trinchera  creeks  and 
their  tributaries;  Provided,  That  nothing  in  this  act 
sh&ll  be  construed  as  inconsistent  with  the  provisions  of 
the  acts  creating  water  districts  numbered  twenty-five, 
twenty-six  and  twenty-seven.  L.  '85,  p.  258,  sees.  13, 
16;  amended  L.  '87,  p.  301,  sec.  42;  amended  L.  '89, 
p.  218,  sec.  i. 

Section  2332.  District  No.  21.  That  district  num- 
ber twenty-one  (21)  shall  consist  of  all  lands  irrigated 
from  ditches  or  canals  taking  water  from  the  Alamosa 
and  La  Jara  creeks  and  their  tributaries.  L.  '85,  p.  258, 
sec.  14. 

Section  2333.  District  No.  22.  That  district  num- 
ber twenty-two  (22)  shall  consist  of  all  lands  in  the 
state  of  Colorado  irrigated  from  ditches  or  canals  taking 
water  from  Conejos  creek  and  its  tributaries.  L.  '85, 
p.  258,  sec.  15. 

Section  2334.  Water  district  No.  23.  That  water 
district  No.  23  shall  consist  of  all  lands  in  the  state  of 
Colorado  being,  or  to  be  irrigated  from  ditches  or  canals 
taking  water  from  the  South  Platte  river,  and  from  any 
of  its  direct  or  indirect*  tributaries  at  any  point  or  points 
above  water  district  No.  8  in  the  said  state.  L.  '89,  p. 
212,  sec.  9. 

Section  2335.  Water  district  No.  24.  "  Water 
district  No.  24  shall  consist  of  all  lands  in  the  state  of 
Colorado  irrigated  by  water  taken  from  that  portion  of 
the  Rio  Grande  between  the  mouth  of  the  Rio  Conejos 


IO2  IRRIGATION   LAWS. 

and  the  Colorado  state  line,  from  the  streams  draining 
into  the  said  portion  of  the  Rio  Grande  and  from  Cos- 
tilla  creek  and  the  streams  draining  into  Costilla  creek. 
L.  '85,  p.  258,  sec.  17;  amended  L.  '89,  p.  370,  sec.  4." 

Section  2336.  Water  district  No.  25.  Water  dis- 
trict No.  25  shall  consist  of  all  lands  irrigated  by  water 
taken  from  the  San  Luis  creek,  Sand  or  Medano  creek, 
Big  Spring  creek,  Little  Spring  creek,  North  Zapato 
creek,  South  Zapato  creek,  Middle  creek.  Bear  creek, 
Sierra  Blanca  creek,  and  all  streams  draining  into  said 
creeks,  and  all  other  streams  between  said  Sand  or 
Medano  creek  and  the  said  Sierra  Blanca  creek.  L.  '85, 
p.  258,  sec.  18;  amended  L.  '89,  p.  370,  sec.  5. 

Section  2337.  District  No.  26.  That  district  No. 
twenty-six  (26)  shall  consist  of  all  lands  irrigated  from 
ditches  or  canals  taking  water  from  Saguache  creek  and 
its  tributaries.  L.  '85,  p.  258,  sec.  IQ. 

Section  2338.  District  No.  27.  That  district  No. 
twenty-seven  (27)  shall  consist  of  all  lands  irrigated 
from  ditches  or  canals  taking  water  from  Tuttle,  Carn- 
ero,  La  Garita  and  all  other  creeks  and  their  tributaries 
which  have  their  source  of  water  supply  in  the  La  Gar- 
ita mountains,  and  flow  eastward  into  the  San  Luis 
valley.  L.  '85,  p.  258,  sec.  20. 

Section  2339.  District  No.  28.  That  district  No. 
twenty-eight  (28)  shall  consist  of  all  lands  irrigated 
from  ditches  or  canals  taking  water  from  the  Tomichi 
and  its  tributaries.  L.  '85,  p.  259,  sec.  21. 

Section  2340.  District  No.  29.  That  district  No. 
twenty-nine  (29)  shall  consist  of  all  the  lands  lying  in 
the  state  of  Colorado  irrigated  from  ditches  or  canals 
taking  water  from  that  part  of  the  San  Juan  river  and 
its  tributaries  which  lie  above  the  junction  of  the  San 
Juan  river  and  the  Rio  Piedra,  and  including  the  Rio 
Piedra.  L.  '85,  p.  259,  sec.  22. 

Section  2341.  District  No.  30.  That  district  No. 
thirty  (30)  shall  consist  of  all  lands  lying  in  the  state  of 
Colorado  irrigated  from  ditches  or  canals  taking  water 


IRRIGATION    LAWS.  103 

from  that  part  of  the  Rio  L,as  Animas  river  and  its  trib- 
taries  which  lie  in  Colorado.     L,.  '85,  p.  259,  sec.  .23. 

Section  2342.  District  No.  31.  That  district  num- 
ber thirty-one  (31)  shall  consist  of  all  lands  in  the  state 
of  Colorado  irrigated  from  ditches  or  canals  taking  water 
from  that  part  of  the  L,os  Pinos  river  and  its  tributaries 
which  lie  in  Colorado.  L.  '85,  p.  259,  sec.  24. 

Section  2343.  Water  district  No.  32.  "Water  dis- 
trict No.  32  shall  consist  of  all  lands  in  the  state  of 
Colorado  irrigated  by  water  taken  from  those  natural 
streams  which  drain  into  the  San  Juan  river,  and  are 
not  included  in  water  districts  numbers  29,  30,  31,  33 
and  34."  L.  '85,  p.  259,  sec.  25;  amended  L/.  '89,  p. 
371,  sec.  6. 

Section  2344.  District  No.  33.  That  district  num- 
ber thirty-three  (33)  shall  consist  of  all  lands  lying  in 
the  state  of  Colorado  irrigated  from  ditches  or  canals 
taking  water  from  the  La  Plata  river  and  its  tributaries 
which  lie  in  Colorado.  L.  '85,  p.  259,  sec.  26. 

Section  2345.  District  No.  34.  That  district  num- 
ber thirty-four  (34)  shall  consist  of  all  lands  lying  in 
the  state  of  Colorado  irrigated  from  ditches  or  canals 
taking  water  from  the  Rio  Mancos  and  its  tributaries. 
L.  '85,  p.  259,  sec.  27. 

Section  2346.  District  No.  35.  That  water  district 
number  thirty-five  (35)  be  and. the  same  is  hereby  estab- 
lished, which  water  district  shall  consist  of  all  lands  ly- 
ing in  the  county  of  Costilla,  in  this  state,  watered  by 
the  Trinchera  river  and  its  tributaries.  L,.  '87,  p.  307, 
sec.  i. 

i.  That  all  acts  and  parts  of  acts  inconsistent  with 
the  provisions  of  this  act  be  and  the  same  are  hereby  re- 
pealed. L.  '87,  p.  308,  sec.  2. 

Section  2347.  Introductory  clause.  That  the 
lands  now,  or  which  may  be  hereafter,  irrrigated  from 
ditches  or  canals  taking  water  from  any  of  the  following 
described  rivers  or  natural  streams  in  the  state  of  Colo- 
rado are  hereby  declared  to  constitute  irrigation  districts. 
L.  '87,  p.  313,  sec.  2. 


104  IRRIGATION    LAWS. 

Section  2348.  District  No.  36.  That  district  No. 
36  shall  consist  of  all  the  lands  irrigated  from  water 
taken  from  the  Blue  river  and  its  tributaries.  L.  '87,  p. 

sec-  3- 


Section  2349.     District  No.  37.     That*  district  No. 

37  shall  consist  of  all  lands  lying  in  the  State  of  Colo- 
rado irrigated  by  waters  taken  from  the  Eagle  river  and 
its  tributaries.     L,.  '87,  p.  313,  sec.  4. 

Section  2350.     District  No.  38.      That  district  No. 

38  shall   consist  of  all  the  lands  lying  in   the  state  of 
Colorado  irrigated   by  waters  taken  from   the  Roaring 
Fork  river  and  its  tributaries.     L.  '87,  p.  313,  sec.  5. 

Section  2351.     District  No.  39.     That  district  No. 

39  shall   consist  of  all    the   lands   lying  in   the  state  of 
Colorado  and  located   on   the   north  side  of  the  Grand 
river,   and   extending  from   the  mouth  of  the  Roaring 
Fork  to  the  mouth  of  Rhone  creek,  all  said  land  being 
irrigated  by  waters  taken  from   the  Grand  river  or  its 
tributaries,  viz:  Elk  creek,  Rifle  creek  and  Rhone  creek. 
L.  '87,  p.  314,  sec.  6. 

Section  2352.  District  No.  40.  That  district  num- 
ber forty  (40)  shall  consist  of  all  lands  irrigated  from 
ditches  or  canals  taking  water  from  Crystal  creek  and 
Smith's  Fork  and  their  tributaries,  and  so  much  of  all 
lands  lying  within  the  boundaries  of  Delta  county  as 
are  irrigated  from  ditches  or  canals  taking  water  from 
the  Gunnison  river  and  its  tributaries,  except  lands  irri- 
gated from  ditches  and  canals  taking  water  from  the 
Uncompahgre  river.  L.  '87,  p.  311,  sec.  2. 

Section  2353.  District  No.  41.  That  district  num- 
ber forty-one  (41)  shall  consist  of  all  lands  irrigated  from 
ditches  or  canals  taking  water  from  the  Uncompahgre 
river  and  its  tributaries,  except  so  much  as  are  within 
the  boundary  lines  of  Ouray  county.  L.  '87,  p.  311, 
sec.  3. 

Section  2354.  District  No.  42.  That  district  No. 
forty-two  (42)  shall  consist  of  all  lands  irrigated  from 
ditches  or  canals  taking  water  from  the  Grand  and  Gun- 


IRRIGATION   LAWS.  105 

nison  rivers  and  their  tributaries  within  the  county  of 
Mesa.     L.  '87,  p.  311,  sec.  4. 

Section  2355.  District  No.  43.  That  water  district 
number  forty-three  is  hereby  established,  and  shall  con- 
sist of  all  lands  irrigated  by  ditches  taking  water  from 
the  White  river  and  its  tributaries.  L.  87,  p.  307,  sec.  i. 

Section  2356.  District  No.  44.  That  water  district 
No.  44  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  Yampa  river  above  the  mouth 
of  the  Little  Snake  river  and  below  the  mouth  of  Forti- 
fication creek,  and  from  the  streams  draining  into  the 

said  portion  of  the  Yampa  river.     L.  '89,  p.  211,  sec.  2. 

* 

Section  2357.  District  No.  45.  That  water  district 
No.  45  shall  consist  of  all  lands  situated  on  the  south 
side  of  the  Grand  river  and  irrigated  from  ditches  or 
canals  taking  water  from  the  Grand  river  and  its  tribu- 
taries, between  the  mouth  of  Roaring  Fork  river  and 
the  north  line  of  Mesa  county.  L.  '89,  p.  213,  sec.  17. 

Section  2358.  District  No.  46.  That  water  district 
No.  46  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  North  Platte  river  above  the 
mouth  of  Michigan  creek,  and  from  the  streams  drain- 
ing into  said  portion  of  the  North  Platte  river.  L.  '89, 
p.  212,  sec.  10. 

Section  2359.  District  No.  47.  That  water  district 
No.  47  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  that  portion  of  the  North 
Platte  river  between  water  district  No.  46  and  the  state 
line  of  Colorado,  and  from  the  streams  draining  into  the 
said  portion  of  the  North  Platte  river,  and  from  Granite 
and  Encampment  creeks  and  the  streams  draining  into 
the  said  creeks.  L,.  '89,  p.  212,  sec.  n. 

Section  2360.  District  No.  48.  That  water  dis- 
trict No.  48  shall  consist  of  all  lands  in  the  state  of 
Colorado  irrigated  by  water  taken  from  the  Big  Laramie 
river  and  from  the  streams  draining  into  the  said  river. 
L.  89,  p.  212,  sec.  12. 

Section  2361.  District  No.  49.  That  water  district 
No.  49  shall  consist  of  all  lands  in  the  state  of  Colorado 


106  IRRIGATION   LAWS. 

irrigated  by  water  taken  from  the  south  fork  of  the 
Republican  river  and  the  Smoky  Hill  river,  and  the 
streams  draining  into  said  rivers.  L.  '89,  p.  471,  sec.  i. 

Section  2362.  District  No'.  50.  That  water  district 
No.  50  shall  consist  of  all  lands  irrigated  by  water  taken 
from  the  Muddy  and  Troublesome  creeks,  arid  from  the 
streams  draining  into'  said  creeks.  L.  '89,  p.  213, 
sec.  18. 

Section.  2363.  District  No.  51.  That  water  district 
No.  51  shall  consist  of  all  lands  irrigated  by  water  taken 
from  the  Grand  river  above  the  mouth  of  the  Blue  river, 
and  from  the  streams  draining  into  the  said  portion  of 
the  Grand  river,  except  the  Muddy  and  Troublesome 
creeks,  and  the  streams  draining  into  said  creeks.  L,. 
'89,  p.  213,  sec.  19. 

Section  2364.  District  No.  52.  That  water  dis- 
trict No.  52  shall  consist  of  all  lands  on  the  south  side 
of  the  Grand  river  irrigated  by  water  taken  from  the 
Grand  river  below  the  mouth  of  the  Blue  river  and 
above  the  mouth  of  Roaring  Fork  river,  and  from  the 
streams  draining  into  the  said  portion  of  the  Grand 
river,  except  Eagle  river  and  its  tributaries.  L.  '89,  p. 
213,  sec.  20. 

Section  2365.  District  No.  53.  That  water  dis- 
trict No.  53  shall  consist  of  all  lands  on  the  north 
side  of  Grand  river  irrigated  by  water  from  that  portion 
of  the  Grand  river  below-  the  mouth  of  Muddy  creek 
and  above  the  mouth  of  Roaring  Fork  river,  and  from 
the  streams  draining  into  the  said  portion  of  the  Grand 
river.  L.  '89,  p.  214,  sec.  21. 

Section  2366.  District  No.  54.  That  water  dis- 
trict No.  54  shall  consist  of  all  lands  in  the  state  of  Col- 
orado irrigated  by  water  taken  from  that  portion  of  the 
Little  Snake  river  and  its  tributaries  above  the  most 
westerly  intersection  of  said  river  with  the  Colorado 
state  line.  L,.  '89,  p.  211,  sec.  3. 

Section  2367.  District  No.  55.  That  water  dis- 
trict No.  55  shall  consist  of  all  lands  in  the  state  of  Col- 


IRRIGATION   LAWS.  107 

orado  irrigated  by  water  taken  from  that  portion  of  the 
Yampa  river  below  water  district  No.  44,  and  from  the 
streams  draining  into  the  said  portion  of  Yampa  river 
not  included  in  water  district  No.  54.  L,.  '89,  p.  211, 
sec.  4. 

Section  2368.  District  No.  56.  That  water  dis- 
trict No.  56  shall  consist  of  all  lands  in  the  state  of  Col- 
orado irrigated  by  water  taken  from  that  portion  of  the 
Green  river  embraced  within  the  boundaries  of  the 
county  of  Routt,  and  from  the  streams  draining  into 
the  said  portion  of  the  Green  river,  except  the  Yampa 
river  and  its  tributaries.  L,.  '89,  p.  211,  sec.  5. 

Section  2369.  District  No.  57.  That  water  district 
No.  57  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  Yampa  river  above  water  dis- 
trict No.  44  and  below  the  mouth  of  Elk  creek,  and 
from  the  streams  draining  into  the  said  portion  of  the 
Yampa  river.  L.  '89,  p.  211,  sec.  6. 

Section  2370.  District  No.  58.  That  water  dis- 
trict No.  58  shall  consist  of  all  lands  irrigated  by  water 
taken  from  the  Yampa  river  above  water  district  No.  57 
and  from  the  streams  draining  into  the  said  portion  of 
Yampa  river.  L.  '89,  p.  21 1,  sec.  7. 

Section  2371.  District  No.  59.  That  water  dis- 
trict No.  59  shall  consist  of  all  lands  irrigated  bv  water 
taken  from  the  Gunnison  river  above  the  mouth  of  the 
Tomichi  creek;  and  from  all  streams  draining  into  the 
said  portion  of  Gunnison  river;  also  of  all  lands  on  the 
north  side  of  Gunnison  river  irrigated  by  water  taken 
from  the  Gunnison  river  below  the  mouth  of  Tomichi 
creek  and  above  water  district  No.  40,  and  from  the 
streams  draining  into  the  said  portion  of  the  Gunnison 
river.  L.  '89,  p.  214,  sec.  22. 

Section  2372.  District  No.  60.  That  water  dis- 
trict No.  60  shall  consist  of  all  lands  irrigated  by  water 
taken  from  the  San  Miguel  river  and  from  the  streams 
draining  into  the  said  river.  L.  '89,  p.  214,  sec.  23. 

Section  2373.  District  No.  61.  That  water  dis- 
trict No.  61  shall  consist  of  all  lands  in  the  state  of 


108  IRRIGATION   LAWS. 

Colorado  irrigated  by  water  taken  from  that  portion  of 
the  Dolores  river  above  the  mouth  of  San  Miguel  river 
and  from  the  streams  draining  into  the  said  portion  of 
the  Dolores  river.  L.  '89,  p.  214,  sec.  24. 

Section  2374.  Djstrict  No.  62.  That  water  dis- 
trict No.  62  shall  consistof  all  lands  south  of  the  Gunnison 
river  irrigated  by  water  taken  from  the  Gunnison  river 
below  the  mouth  of  Tomichi  creek  and  above  water  dis- 
trict No.  40,  and  from  the  streams  draining  into  the  said 
portion  of  the  Gunnison  river.  L.  '89,  p.  214,  sec.  25. 

Section  2375.  District  No.  63.  That  water  dis- 
trict No.  63  shall  consist  of  all  lands  in  the  state  of 
Colorado  irrigated  by  water  taken  from  that  portion  of 
the  Dolores  river  below  the  mouth  of  the  San  Miguel 
river  and  from  the  streams  draining  into  the  said  portion 
of  the  Dolores  river.  L.  '89,  p.  214,  sec.  26. 

Section  2376.  District  No.  64.  That  water  district 
No.  64  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  South  Platte  river  between  the 
western  boundary  line  of  Washington  county  and  the 
state  line  of  Colorado  and  Nebraska,  and  from  the 
streams  draining  into  the  said  portion  of  the  South 
Platte  river.  L.  '89,  p.  213,  sec.  14. 

Section  2377.  District  No.  65.  That  water  district 
No.  65  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  the  middle  and  north 
forks  of  the  Republican  river,  from  Sandy  and  French- 
man's creeks,  and  the  tributaries  of  these  streams.  L. 
'89,  p.  213,  sec.  15. 

Section  2378.  District  No.  66.  That  water  district 
No.  66  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  the  Dry  Cimmarron  and 
the  streams  draining  into  the  said  river.  L.  '89,  p.  472, 
sec.  2. 

Section  2379.  District  No.  67.  That  water  dis- 
trict No.  67  shall  consist  of  all  the  lands  in  the  state  of 
Colorado  irrigated  by  water  taken  from  that  portion  of 
the  Arkansas  river  below  the  mouth  of  the  Purgatoire 


IRRIGATION   LAWS.  109 

river,  and  from  the  streams  draining  into  the  said  por- 
tion of  the  Arkansas  river.     L,.  '89,  p.  472,  sec.  3. 

Section  2380.  District  No.  68.  That  water  dis- 
trict No.  68  shall  consist  of  all  lands  irrigated  by  water 
taken  from  that  portion  of  the  Uncompahgre  river 
above  water  district  No.  41,  and  from  the  streams  drain- 
ing into  the  said  portion  of  the  Uncompahgre  river.  L. 
'89,  p.  213,  sec.  16. 


DIVISION  V. 


WATER  COMMISSIONERS. 

Section  2381.  Number  of  water  commissioners — 
How  appointed — Bonds — Term  of  office.  There  shall 
be  one  water  commissioner  for  each  of  the  above  named 
districts  and  for  each  district  hereafter  formed,  who 
shall  be  appointed  by  the  governor,  to  be  selected  by 
him  from  persons  recommended  to  him  by  the  several 
boards  of  county  commissioners  of  the  counties  into 
which  water  districts  may  extend;  and  the  water  com- 
missioner so  appointed  shall,  before  entering  upon  his 
duties,  give  a  good  and  sufficient  bond  for  the  faithful 
discharge  of  his  duties,  with  not  less  than  three  sure- 
ties, in  a  sum  not  less  than  one  thousand  nor  more  than 
five  thousand  dollars,  the  amount  of  said  bond  to  be 
fixed  by  the  county  commissioners  and  approved  by  the 
governor  and  state  engineer.  The  commissioner  so 
appointed  shall  hold  his  office  until  his  successor  is 
Appointed  and  qualified;  Provided,  however,  That  if  such 
water  district  shall  be  embraced  in  more  than  one 
county,  and  the  several  counties  in  which  such  water 
district  is  situated  disagree  as  to  the  amount  of  the 
bond  as  herein  required  of  water  commissioners,  then 
and  in  that  event  the  governor  shall  fix  the  amount 
thereof,  with  the  same  effect  as  though  fixed  by  the 
county  commissioners.  L.  '79,  pp.  98,  99,  sec.  16;  G. 
S-  '83*  p.  569,  sec.  1752;  amended  L.  '87,  p.  302,  sec.  i. 


110  IRRIGATION    LAWS. 

2.  The  division  made  by  water  commissioners  is 
subject  to  review  by  the  courts.  Certiorari  lies  if  the 
commissioners  exceed  their  jurisdiction.  See  Code  '87, 
sec.  297. 

Section  2382.  Vacancies — How  filled — Removal. 
The  governor  shall,  by  like  selection  and  appointment, 
fill  all  vacancies  which  may  be  occasioned  by  death, 
resignation  or  continued  absence  from  the  district, 
removal  or  otherwise.  Said  county  commissioners  may, 
from  time  to  time,  recommend  persons  to  be  appointed 
as  above  provided,  and  the  governor  may  at  any  time 
remove  any  water  commissioner  in  his  discretion.  L. 
'87,  p.  302,  sec.  2. 

Section  2383.  Oath  of  office  within  ten  days. 
That  within  ten  days  after  his  appointment  and  before 
entering  upon  the  duties  of  his  office  such  water  com- 
missioner shall  take  and  subscribe  the  oath  of  office 
prescribed  by  the  constitution  of  this  state.  L.  '79,  p. 
99,  sec.  17;  G.  S.  '83,  p.  570,  sec.  1753. 

Section  2384.  Duty  of  water  commissioners — Open 
and  shut  headgates.  It  shall  be  the  duty  of  said  water 
commissioners  to  divide  the  water  in  the  natural  stream 
or  streams  of  their  district  among  the  several  ditches 
taking  water  from  the  same,  according  to  the  prior 
rights  of  each  respectively,  in  whole  or  in  part  to  shut 
and  fasten,  or  cause  to  be  shut  and  fastened  by  order 
given  to  any  sworn  assistant,  sheriff  or  constable  of  the 
county  in  which  the  head  of  such  ditch  is  situated,  the 
headgates  of  any  ditch  or  ditches  heading  in  any  of  the 
natural  streams  of  the  district,  which  in  a  time  of 
scarcity  of  water,  shall  not  be  entitled  to  water  by  reason 
of  the  priority  of  the  rights  of  others  below  them  on 
the  same  stream.  L,.  '79,  p.  99,  sec.  18;  G.  S.  '83,  p.  570, 
sec.  1754. 

Section  2385.  Interfering  with  headgate  or  water 
box — Penalty.  Every  person  who  shall  wilfully  open, 
close,  change  or  interfere  with  any  headgate  or  water 
box  without  authority,  shall  be  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof,  shall  be  fined  not 
less  than  fifty  dollars  nor  more  than  three  hundred  dol- 


IRRIGATION   LAWS.  Ill 

lars,  and  may  be  imprisoned  not  less   than  sixty  days. 
L.  '79>  P-  Io8>  sec-  445  G-  S.  '83,  p.  570,  sec.  1755. 

i.  Water  commissioners  invested  with  police  pow- 
ers. Sec.  2386,  sec.  2391. 

Section  2386.  Power  of  water  commissioners  — 
State  engineer.  Water  commissioners  shall,  in  the  dis- 
charge of  their  duties,  be  invested  with  the  powers  of 
constables,  and  may  arrest  any  person  violating  his 
(their)  orders  relative  to  the  opening  or  shutting  down 
of  headgates,  or  the  using  of  water  for  irrigating  pur- 
poses, and  take  such  offender  before  the  nearest  justice 
of  the  peace,  who  may,  if  such  offender  be  convicted, 
fine  him  in  any  sum  not  exceeding  one  hundred  dollars, 
and,  in  default  of  the  payment  of  such  fine,  may  im- 
prison him  in  the  county  jail  not  exceeding  thirty  days; 
Provided,  That  the  orders  of  the  superintendents  of  irri- 
gation in  their  respective  divisions,  and  the  orders  of  the 
state  engineer,  shall  be  held  at  all  times  superior  to  the 
orders  of  water  commissioners,  and  shall  relieve  any  per- 
son acting  in  accordance  with  such  superior  orders  from 
the  penalties  herein  provided;  And  provided,  Also,  that 
in  like  manner  the  orders  issued  by  the  state  engineer 
shall  be  held  superior  to  any  order  issued  by  any  super- 
intendent of  irrigation.  L.  '89,  p.  469,  sec.  i. 

Section  2387.  Pay  of  water  commissioners — Veri- 
fied account.  The  water  commissioners  shall  be  entitled 
to  pay  at  the  rate  of  five  (5)  dollars  per  day  for  each  day 
he  shall  actually  be  employed  in  the  duties  of  his  office, 
and  be  paid  by  the  county  or  counties  in  which  his  irri- 
gating district  may  lie.  Bach  water  commissioner  shall 
keep  a  just  and  itemized  account  of  the  time  spent  by 
him  in  the  duties  of  his  office,  and  shall  present  a  true 
copy  thereof,  verified  by  oath,  to  the  board  of  county 
commissioners  of  the  county  in  which  his  district  may 
lie,  and  said  board  of  commissioners  shall  allow  the 
same;  and  if  said  irrigation  district  shall  extend  into 
two  or  more  counties,  then  such  water  commissioner 
shall  present  his  account  for  his  services,  verified  as 
aforesaid,  to  the  board  of  county  commissioners  into 
which  his  district  extends,  and  each  board  of  county 


112  IRRIGATION    LAWS. 

commissioners  shall  pay   its  pro  rata  share  thereof.     L. 
'89,  p.  470,  sec.  2. 

Section  2388.  Employ  suitable  assistance — Pay. 
The  water  commissioner  is  hereby  given  power,  when- 
ever he  shall  deem  it  necessary,  to  employ  a  suitable 
assistant  or  assistants,  to  aid  him  in  the  discharge  of  his 
duties;  such  assistant  or  assistants  shall  take  the'same 
oath  as  water  commissioner,  and  shall  obey  his  instruct- 
ions, and  shall  be  entitled  to  pay  at  the  rate  of  two 
dollars  as  (and)  fifty  cents  ($2.50)  per  day  for  every  day 
they  are  so  employed,  to  be  paid  by  county  commission- 
ers upon  the  certificates  of  the  water  commissioners. 
L.  189,  p.  470,  sec.  3. 

Section  2389.  Itemized  account  of  time.  Each 
water  commissioner  shall  keep  an  itemized  account  of 
the  time  of  each  assistant  by  him  employed,  and  shall 
certify  the  same  to  the  board  of  county  commissioners, 
who  shall  pay  such  assistant  or  assistants,  in  the  same 
manner  as  provided  for  payment  of  water  commission- 
ers in  section  two  of  this  act.  L.  '89,  p.  470,  sec.  4. 

i.     Section  2  referred  to  is  sec.  2387  hereof. 

Section  2390.  Repeal.  That  section  one  of  an 
act  entitled,  "An  act  to  amend  and  (an)  act  entitled  an 
act  to  regulate  the  use  of  water  for  irrigation,  and  pro- 
viding for  settling  the  priority  of  rights  thereto,  and  for 
payment  of  the  expenses  thereof,  and  for  payment  of  all 
costs  and  expenses  incident  to  said  regulations  of  use," 
approved  February  19,  -1879;  approved  April  9,  1885; 
and  also  sections  forty-one  of  an  act  entitled,  "An  act  to 
regulate  the  use  of  water  for  irrigation  and  providing 
for  settling  the  priority  of  rights  thereto,  and  for  pay- 
ment 01  the  expenses  thereof,  and  for  payment  of  all 
costs  and  expenses  incident  to  said  regulation  of  use," 
approved  February  19,  1879,  an(^  a^  other  acts  incon- 
sistent herewith,  are  hereby  repealed.  L.  '89,  p.  470, 
sec.  5. 

Section  2391.  Commissioner  devote  entire  time  to 
duties — Penalty  for  negl'ect.  It  is  hereby  made  the  duty 
of  the  water  commissioner,  after  being  called  upon  to 
distribute  water,  to  devote  his  entire  time  to  the  dis- 


IRRIGATION   LAWS.  113 

charge  of  his  duties  when  such  duties  are  required,  so 
long  as  the  necessities  of  irrigation  in  his  district  shall 
require;  and  it  is  made  his  duty  to  be  actively  employed 
on  the  line  of  the  stream  or  streams  in  his  water  district, 
supervising  and  directing  the  putting  in  of  headgates, 
wastegates,  keeping  the  stream  clear  of  unnecessary 
dams  or  other  obstructions,  and  such  other  duties  as 
pertain  to  a  guard  of  the  public  streams  in  his  water 
district;  and  for  wilful  neglect  of  his  duty,  he  shall  be 
liable  to  fifty  dollars  fine,  with  costs  of  suit.  L.  89,  p. 
471,  sec.  6. 

Section  2392.  Commissioner  begin  work  when 
called  on.  Said  water  commissioners  shall  not  begin 
their  work  until  they  shall  be  called  on  by  two  or  more 
owners  or  managers,  or  persons  controlling  ditches  in 
their  several  districts,  by  application  in  writing,  stating 
that  there  is  necessity  for  their  action;  and  they  shall 
not  continue  performing  services  after  the  necessity 
therefore  (therefor)  shall  cease.  L.  '79.  pp.  107,  108,  sec. 
43;  G.  S.  '83,  pp.  570,  571,  sec.  1758. 

i.     Commissioner  failing  to  perform  duty,  sec.  2291. 


DIVISION  VI. 


OFFENSES. 

Section  2393.  Cutting  or  breaking  gate,  bank, 
side  of  ditch,  flume,  etc. — Penalty.  Any  person  or 
persons  who  shall  knowingly  and  wilfully  cut,  dig,  break 
down  or  open  any  gate,  bank,  embankment  or  side  of 
any  ditch,  canal,  flume,  feeder  or  reservoir  in  which 
such  person  or  persons  may  be  a  joint  owner,  or  the 
property  of  another,  or  in  the  lawful  possession  of 
another  or  others,  and  used  for  the  purpose  of  irrigation, 
manufacturing,  mining  or  domestic  purposes,  with 
intent  maliciously  to  injure  any  person,  association  or 
corporation,  or  for  his  or  her  own  gain,  unlawfully,  with 
intent  of  stealing,  taking  or  causing  to  run  or  pour  out 
of  such  ditch,  canal,  reservoir,  feeder  or  flume,  any 
water  for  his  or  her  own  profit,  benefit  or  advantage,  to 

8—1.  L. 


114  IRRIGATION   LAWS. 

the  injury  of  any  other  person,  persons,  association  or 
corporation,  lawfully  in  the  use  of  such  water  or  of  such 
ditch,  canal,  reservoir,  feeder  or  flume,  he,  she  or  they 
so  offending  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  shall  be  fined  in  any  sum  not 
less  than  five  dollars  nor  more  than  three  hundred  dol- 
lars, and  may  be  imprisoned  in  the  county  jail  not 
exceeding  ninety  days.  L.  '81,  p.  163,  sec.  i;G.  S.  '83, 
p.  571,  sec.  1759. 

1.  Penalty  for  polluting  water  in  ditch  or  stream. 
Sees.  1357,  3960,   3962. 

2.  Penalty  for   damaging  any  ditch,    flume,    etc. 
Sec.  574. 

3.  Bribing    person   in    charge   of   distribution    of 
water.     Sec.  2398. 

4.  As  to  right  to  take  water  without  knowledge  of 
ditch  company.     See  Coffin  v.  Left-Hand  Ditch  Co.,  6 
Colo.,  444-5  (i88a). 

5.  A  person   holding  an   assignment  of  shares  of 
stock  in  a  joint-stock    ditch    company,  but   not    trans- 
ferred on  the  books  of  the  company,  is  not  entitled  to 
water  from  a  ditch   for  the  irrigation  of  his  lands,  not 
having  used  water  therefrom;  and  if  he  takes  water  by 
force  from  the  ditch  he  is  liable  in   trespass.     Supply 
Ditch  Co.  v.  Elliott,  10  Colo.,  330-5  (1887). 

Section  2394.  Jurisdiction  of  justices  of  the  peace. 
Justices  of  the  peace  shall  have  the  jurisdiction  of  all 
offenses  under  the  provisions  of  this  act,  saving  to  any 
party  defendant  the  right  to  be  tried  by  a  jury,  as  in 
other  criminal  cases  before  such  justices  now  provided 
for  by  law;  and  also  the  right  to  appeal  in  manner  and 
form  as  by  law,  now  or  hereafter  provided  by  law,  in 
criminal  cases  before  such  justices.  L.  '81,  p.  163,  sec. 
2;  G.  S.  '83,  p.  571,  sec.  1760. 

Section  2395.  No  person  to  receive  more  water 
than  he  is  entitled  to.  'That  it  shall  be  the  duty  of 
every  person  who  is  entitled  to  take  water  for  irrigation 
purposes  from  any  ditch,  canal  or  reservoir  to  see  that 


IRRIGATION   LAWS.  115 

he  receives  no  more  water  from  such  ditch,  canal  or 
reservoir  through  his  headgate,  or  by  any  ways  or 
means  whatsoever,  than  he  is  entitled  to,  and  that  he 
shall,  at  all  times,  take  every  precaution  to  prevent 
more  water  than  he  is  entitled  to  coming  from  such 
ditch,  canal  or  reservoir  upon  his  land.  L.  '87,  p.  312, 
sec.  i. 

Section  2396.  Duties  of  parties  taking  water — Lia- 
bility— Damages — Costs.  That  it  shall  be  the  duty  of 
every  such  person  taking  water  from  any  ditch,  canal  or 
reservoir,  to  be  used  for  irrigating  purposes,  on  finding 
that  he  is  receiving  more  water  from  such  ditch,  canal 
or  reservoir,  either  through  his  headgate  or  by  means  of 
leaks,  or  by  any  means  whatsoever,  immediately  to  take 
steps  to  prevent  his  further  receiving  more  water  from 
such  ditch,  canal  or  reservoir  than  he  is  entitled  to,  and 
if  knowingly  he  permits  such  extra  water  to  come  upon 
his  land  from  such  ditch,  canal  or  reservoir,  and  does 
not  immediately  notify  the  owner  or  owners  of  such 
ditch,  or  take  steps  to  prevent  its  further  flowing  upon 
his  land,  he  shall  be  liable  to  any  person,  company,  or 
corporation  who  may  be  injured  by  such  extra  appropri- 
ation of  water  for  the  actual  damage  sustained  by  the 
party  aggrieved,  which  damages  shall  be  adjudged  to  be 
paid,  together  with  the  costs  of  suit  and  a  reasonable 
attorney's  fee,  to  be  fixed  by  the  court  and  taxed  with 
the  costs.  L.  '87,  p.  312,  sec.  2. 

Section  2397.  Ditches  free  from  taxation.  That 
all  ditches  used  for  the  purpose  of  irrigation,  and  that 
only  where  the  water  is  not  sold  for  the  purpose  of  de- 
riving a  revenue  therefrom,  be  and  the  same  are  hereby 
declared  free  from  all  taxation,  whether  for  state,  county  or 
municipal  purposes.  L.  '72,  p.  143,  sec.  i;  G.  L,.  '77, 
p.  517,  sec.  1384;  G.  S.  '83,  p.  571,  sec.  1761. 

1.  See  sec.   3766,   chap.    "Revenue;"  also  const., 
art.  X.,  sec.  3. 

2.  This  section  has  no  place  under  this  division, 
but  it  is  left  there  as  found  in  G.  S.  '83,  p.  571. 

Section  2398.  Dishonest  distribution  of  water — A 
misdemeanor — Penalty.  Any  water  commissioner,  or 


Il6  IRRIGATION   LAWS. 

any  deputy  water  commissioner,  assistant,  water  master, 
superintendent,  ditch  rider  or  other  person  in  charge  of 
the  divisions  or  distributions  of  water,  whether  from  the 
public  stream  or  from  any  ditch  or  canal,  who  shall 
take  or  receive  any  money,  promises  or  favors,  or  any- 
thing of  value,  intended  to  influence  him  dishonestly  to 
favor,  or  cause  water  to  accrue  or  run  to  any  person  or 
persons'  advantage,  benefit  or  gain,  detrimental  to  the 
rights  of  others,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  fined  in  any  sum  not  less  than  fifty 
(50)  dollars  nor  more  than  three  hundred  (300)  dollars. 
Any  person  giving  or  offering  any  such  money,  promises 
or  favors,  or  any  other  thing  of  value,  to  any  of  such  above- 
named  persons,  with  intent  as  aforesaid,  shall  likewise 
be  deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  shall  be  punished  by  a  fine  in  any  sum  not 
less  than  fifty  (50)  dollars  nor  more  than  three  hundred 
(300)  dollars;  and  any  fines  so  collected  shall  be  paid 
into  the  school  fund  of  the  county  wherein  such  fines 
are  collected.  L.  '89,  p.  39,  sec.  i. 


DIVISION  VII. 


ADJUDICATION   OF   RIGHTS. 

Section  2399.  Jurisdiction  of  courts — How  vested. 
For  the  purpose  of  hearing,  adjudicating  and  settling 
all  questions  concerning  the  priority  of  appropriation  of 
water  between  ditch  companies  and  other  owners  of 
ditches  drawing  water  foi  irrigation  purposes  from  the 
same  stream  or  its  tributaries  within  the  same  water 
district,  and  all  other  questions  of  law  and  questions  of 
right  growing  out  of  or  in  any  way  involved  or  con- 
nected therewith,  jurisdiction  is  hereby  vested  exclusively 
in  the  district  court  of  the  proper  county;  but  when  any 
water  district  shall  extend  into  two  or  more  counties, 
the  district  court  of  the  county  in  which  the  first 
regular  term  after  the  first  day  of  December  in  each 
year  shall  soonest  occur,  according  to  the  law  then  in 
force,  shall  be  the  proper  court  in  which  the  proceedings 
for  said  purpose,  as  hereinafter  provided  for,  shall  be 


IRRIGATION   LAWS.  1 17 

commenced;  but  where  said  proceedings  shall  be  once 
commenced,  by  the  entry  of  an  order  appointing  a 
referee  in  the  manner  and  for  the  purpose  hereinafter 
in  this  act  provided,  such  court  shall  thereafter  retain 
exclusive  jurisdiction  of  the  whole  subject  until  final 
adjudication  thereof  is  had,  notwithstanding  any  law  to 
the  contrary  now  in  force.  L,.  '79.  pp.  99,  100,  sec.  19; 
G.  S.  '83,  pp.  571,  572,  sec.  1762. 

1.  An  act  entitled  "an  act  to  regulate  the  use  of 
water  for  irrigation,  and  providing  for  settling  the  pri- 
ority of  right  thereto,  and  for  payment  of  the  expenses 
thereof,  and  for  payment  of  all  costs  and  expenses  inci- 
dent to  said  regulation  of  use;"  approved  and  in  force 
February  19,  1879  (L.  '79>  p.  94,  etc.),  was  never  specifi- 
cally repealed.     But  many  sections  of  it  are  supplanted 
by  the  act  at  the  head  of  this  division  on  VII.  (L.  '81, 
p.  142);  but  where  there  is  no  necessary  conflict  between 
the  two  acts,  the  sections  of  both  are  to  be  found  in  our 
text. 

2.  The  title  of  the  said  act  (L,.  '79,  p.  94)  set  out 
in  the  foregoing  note,  is  sufficient  and  clearly  expresses 
the  subject  as  required  by  Const.,  art.  V.,  sec.  21;  Golden 
Canal  Co.  v.  Bright,  8  Colo.,  147  (1884). 

3.  The   irrigation   acts   of  1879    and    1881    were 
intended  as  a  system  of  procedure  for  determining  the 
priority   of  rights  to   the   use   of   water   for  irrigation 
between  the  owners  of  the  ditches,  canals  and  reservoirs 
taking  water  from  the  same  natural  stream.     Platte  W. 
Co.   v.    North    Colo.  L   Co.,   12   Colo.,  529  (1889).     See 
Mills'  Const,  Anil.,  art.  XVI.,  sec.  6,  note  48,  etc. 

4.  As  to  the  divided  position  of  our  supreme  court 
on  the   purpose    of    this    statute     adjudicating  priori- 
ties, whether  it  is  simply  a  police  regulation  or  not,  see 
Southworth  case,  13  Colo.,  135,  etc.  (1889),  in  notes  93-6 
of  Const. ,  art.  XVI. ,  sec.  6. 

Section  2400.  Filing  statements  of  claims — Ditch, 
name,  description,  post-office  address.  In  order  that  all 
parties  may  be  protected  in  their  lawful  rights  to  the 
use  of  water  for  irrigation,  every  person,  association  or 
corporation  owning  or  claiming  any  interest  HI  any 


Il8  IRRIGATION    LAWS. 

ditch,  canal  or  reservoir,  within  any  water  district, 
shall,  on  or  before  the  first  day  of  June,  A.  D.  1881,  file 
with  the  clerk  of  the  district  court  having  jurisdiction 
of  priority  of  right  to  the  use  of  water  for  irrigation  in 
such  water  district,  a  statement  of  claim,  under  oath, 
entitled  of  the  proper  court,  and  in  the  matter  of  prior- 
ities of  water  rights  in  district  No ,  as  the  case  may 

be,  which  statement  shall  contain  the  name  or  names, 
together  with  the  post-office  address  of  the  claimant  or 
claimants  claiming  ownership,  as  aforesaid,  of  any  such 
ditch,  canal  or  reservoir,  the  name  thereof  (if)  any,  and 
if  without  a  name,  the  owner  or  owners  shall  choose 
and  adopt  a  name,  to  be  therein  stated,  by  which  such 
ditch,  canal  or  reservoir  shall  thereafter  be  known,  the 
description  of  such  ditch,  canal  or  reservoir,  as  to  loca- 
tion of  headgate,  general  course  of  ditch,  the  name  of 
the  natural  stream  from  which  such  ditch,  canal  or 
reservoir  draws  its  supply  of  water,  the  length,  width, 
depth  and  grade  thereof,  as  near  as  may  be;  the  time, 
fixing  a  day,  month  and  year  as  the  date  of  the  appro- 
priation of  water  by  original  construction,  also  by  any 
enlargement  or  extension,  if  any  such  thereof  may 
have  been  made,  and  the  amount  of  water  claimed  by 
or  under  such  construction,  enlargement  or  extension, 
and  the  present  capacity  of  the  ditch,  canal  or  feeder  of 
reservoir,  and  also  the  number  of  acres  of  land  lying 
under  and  being  or  proposed  to  be  irrigated  by  water 
from  such  ditch,  canal  or  reservoir.  Said  statement 
shall  be  signed  by  the  proper  party  or  parties.  L,.  '81, 
pp.  142,  143,  sec.  i;  G.  S.  '83,  p.  572,  sec.  1763. 

i.  Referee's  notice  to  file  statement,  sec.  2410; 
clerk  publishes  notice,  sec.  2405;  see  sec.  2415;  see  also 
sec.  2265.  This  section  referred'to  in  F.  H.  L,.  C.  &  R. 
Co.  v.  South  worth,  13  Colo.,  134  (1879).  For  digest  of 
the  case  see  Mills'  Const.  Ann.,  art.  XVI,  sec.  6,  note 
93,  etc. 

Section  2401.  Secretary  of  state  make  publication 
— Publisher's  certificate.  The  secretary  of  state  shall, 
without  delay,  after  the  passage  of  this  act,  cause  a  cer- 
tified copy  of  the  foregoing  section,  giving  the  date  of 
the  approval  of  this  act,  to  be  published  in  one  of  the 


IRRIGATION   LAWS.  1 19 

public  newspapers  published  in  such  county  in  which 
part  or  portion  of  any  water  district  is  or  shall  be  estab- 
lished by  law  at  the  time  of  such  publication;  and  said 
sec.  i  shall  be  published,  as  aforesaid,  once  in  each  and 
every  week  continuously  in  said  paper  until  said  first 
day  of  June,  A.  D.  1881,  and  in  case  in  the  meantime 
any  one  of  said  papers  shall  cease  to  be  published,  then 
such  publication  shall  be  made  in  some  other  paper  in 
the  same  county  (if  any);  and  on  conclusion  of  such 
publication  such  publisher  of  such  paper  shall  deliver 
to  the  secretary  of  state  his  sworn  certificate  of  publica- 
tion in  duplicate,  showing  that  such  publication  has 
been  made  in  his  paper  in  compliance  with  the  preced- 
ing section  hereof,  and  stating  the  first  and  last  day  of 
such  publication;  and  he  shall  thereupon  be  entitled  to 
receive  from  the  secretary  of  state  a  certificate  of  the 
amount  due  him  for  such  publication,  on  presentation 
of  which  to  the  auditor  of  state  he  shall  draw  his  war- 
rant for  the  amount  in  favor  of  the  holder  on  the  state 
treasurer,  who  shall  pay  the  same  according  to  law.  L. 
'81,  pp.  143,  144,  sec.  2;  G.  S.  '83,  pp.  572,  573, 
sec.  1764. 

Section  2402.  Secretary's  certificate — Where  filed 
— Effect.  The  secretary  of  state  shall  file  one  of  said 
duplicate  certificates  of  publication  with  the  clerk  of 
the  district  court  having  jurisdiction  of  priority  of  rights 
to  use  of  water  for  irrigation  in  the  proper  water  dis- 
trict, certifying  officially  that  such  publication  therein 
mentioned  was  duly  authorized  by  him,  and  said  clerk 
shall  file  the  same  with  the  statement  of  claim  provided 
for  in  one  section  hereof,  and  such  certificate  of  such 
publisher  or  any  additional  certificate  of  the  same  pub- 
lisher to  same  fact,  in  case  of  loss  of  the  original,  shall 
be  proof  of  the  proper  publication  of  said  section  in  the 
paper  therein  mentioned.  Said  secretary  of  state  shall 
also  certify  to  such  clerk  of  the  several  district  courts 
having  jurisdiction  of  said  priorities  of  right  to  use  of 
water  for  irrigation  throughout  the  state  the  names  of 
the  newspapers  and  of  the  county  in  which  he  caused 
such  publication  to  be  made,  and  that  the  duplicate  cer- 
tificate of  publication  of  the  publisher,  as  herein 
required,  are  (is)  on  file  in  his  office,  and  said  certificate 


I2O  IRRIGATION    LAWS. 

shall  be  sufficient  proof  of  the  publication  of  said  sec.  I 
hereof,  as  by  this  act  required.  L.  '81,  p.  144,  sec.  3; 
G.  S.  '83,  p.  573,  sec.  1765. 

i.     Sec.  i,  referred  to,  is  sec.  2400  hereof. 

Section  2403.  Proceedings  in  court — Order — Evi- 
dence —  Examination —  Proofs — What  facts — Decree- 
Certificate  of  clerk.  When,  at  any  time  after  the  first 
day  of  June,  A.  D.  1881,  any  one  or  more  persons,  asso- 
ciations or  corporations,  interested  as  owners  of  any 
ditch,  canal  or  reservoir  in  any  water  district,  shall  pre- 
sent to  the  district  court  of  any  county  having  jurisdic- 
tion of  priority  of  rights  to  the  use  of  water  for  irriga- 
tion in  such  water  district,  according  to  the  provisions 
of  an  act  entitled  an  act  to  regulate  the  use  of  water  for 
irrigation  and  providing  for  settling  the  priority  of 
rights  thereto,  and  for  payment  of  the  expenses  thereof, 
and  for  payment  of  all  costs  and  expenses  incident  to 
said  regulation  of  use,  or  to  the  judge  thereof  in  vaca- 
tion, a  motion,  petition  or  application  in  writing,  mov- 
ing or  praying  said  court  to  proceed  to  an  adjudication 
of  the  priorities  of  rights  to  use  of  water  for  irrigation 
between  the  several  ditches,  •  canals  and  reservoirs  in 
such  district,  the  court  or  judge  thereof  in  vacation,  shall, 
without  unnecessary  delay,  in  case  he  shall  deem  it 
practicable  to  proceed  in  open  court,  as  prayed  for,  by 
an  order  to  be  entered  of  record  upon  such  motion,  pe- 
tition or  application,  appoint  a  day  in  some  regular  or 
special  term  of  said  court,  for  commencing  to  hear  and 
take  evidence  in  such  adjudication,  at  which  time  it 
shall  be  the  duty  of  the  court  to  proceed  to  hear  all  evi- 
dence which  may  be  offered  by  or  on  behalf  of  any  per- 
son, association  or  corporation  interested  in  any  ditch, 
canal  or  reservoir  in  such  district,  either  as  owner  or 
consumer  of  water  therefrom,  in  support  of  or  against 
any  claim  or  claims  of  priority  of  appropriation  of  water 
made  by  means  of  any  ditch,  canal  or  reservoir,  or  by 
any  enlargement  or  extension  thereof,  in  such  district, 
and  consider  all  such  evidence,  together  with  any  and 
all  evidence,  if  any,  which  may  have  been  heretofore  of- 
fered and  taken  in  such  district  in  the  same  matter  by 
any  referee  heretofore  appointed  under  the  provisions  of 


IRRIGATION   LAWS.  121 

said  act  above  herein  mentioned,  and  also  the  argu- 
ments of  parties  or  their  counsel,  and  shall  ascertain 
and  find  from  such  evidence,  as  near  as  may  be,  the  date 
of  the  commencement  of  such  ditch,  canal  or  reservoir, 
together  with  the  original  size  and  carrying  capacity 
thereof  as  originally  constructed,  the  time  of  the  com- 
mencement of  each  enlargement  or  extension  thereof,  if 
any,  with  the  increased  capacity  thereby  occasioned,  the 
time  spent,  severally,  in  such  construction  and  enlarge- 
ment, or  extension  and  re-enlargement,  if  any,  the  dili- 
gence with  which  work  was  in  each  case  prosecuted,  the 
nature  of  the  work  as  to  difficulty  of  construction,  and 
all  such  other  facts  as  may  tend  to  show  the  compli- 
ance with  the  law,  in  acquiring  the  priority  of  right 
claimed  for  each  such  ditch,  canal  or  reservoir,  and  de- 
termine the  matters  put  in  evidence,  and  make  and 
cause  to  be  entered  a  decree  determining  and  establish- 
ing the  several  priorities  of  right,  by  appropriation  of 
water,  of  the  several  ditches,  canals  and  reservoir  (reser- 
voirs) in  such  water  district,  concerning  which  testi- 
mony shall  have  been  offered,  each  according  to  the 
time  of  its  said  construction  and  enlargement,  or  enlarge- 
ments or  extensions,  with  the  amount  of  water  which 
shall  be  held  to  have  been  appropriated  by  such  con- 
struction and  enlargements,  or  extensions,  describing- 
such  amount  by  cubic  feet  per  second  of  time,  if  the  evi- 
dence shall  show  sufficient  data  to  ascertain  such  cubic 
feet,  and,  if  not,  by  width,  depth  and  grade,  and  such 
other  description  as  will  most  certainly  and  conveni- 
ently show  the  amount  of  water  intended  as  the  capa- 
city of  such  ditch,  canal  or  reservoir  in  such  decree. 
Said  court  shall  further  order  that  each  and  every  party 
interested  or  claiming  any  such  ditch,  canal  or  reser- 
voir shall  receive  from  the  clerk,  on  payment  of  a  rea- 
sonable fee  therefor,  to  be  fixed  by  the  court,  a  certifi- 
cate, under  seal  of  the  court,  showing  the  date  or  dates 
and  amount  or  amounts  of  appropriations  adjudged  in 
favor  of  such  ditch,  canal  or  reservoir,  under  and  by  vir- 
tue of  the  construction,  extension  and  enlargements 
thereof,  severally;  also  specifying  the  number  of  said 
ditch  and  of  each  priority  to  which  the  same  may  be  en- 
titled by  reason  of  such  construction,  extension  and  en- 


122  IRRIGATION   LAWS. 

largements.     L.  '81,  pp.    144-146,  sec.  4;  G.  S.  '83,  pp. 
573)  574,  sec.  1766. 

1.  The  irrigation  acts  of   1879  and  1881  were  in- 
tended as  a  system  of  procedure  for  determining   the 
priority  of  rights  to  the  use  of  water  for  irrigation  be- 
tween  the   owners   of    ditches,    canals   and    reservoirs 
taking  water  from  the  same  natural  stream.     Platte  W. 
Co.   v.  North.   Colo.  Irr.  Co.,  12    Colo.,   529   (1889);   see 
Const.,  art.  XVI.,  sec.  6,  note  48,  etc. 

2.  This  section  referred  to  in  F.  H.  L.  &  C.  &  R. 
Co.  v.  Southworth,  13  Colo.,  135  (1889). 

3.  For  digest  of  this  case,  see  Mills'  Const.  Ann., 
art.  XVI.,  sec.  6,  note  93,  etc. 

Section  2404.  Copy  of  decree — Authority  of  com- 
missioner— Recording — Copy — Evidence.  The  holder 
of  such  certificate  shall  exhibit  the  same  to  the  water 
commissioner  of  the  district  when  he  commences  the 
exercise  of  his  duties,  and  such  water  commissioner 
shall  keep  a  book  in  which  shall  be  entered  a  brief 
statement  of  the  contents  of  such  certificate,  and  which 
shall  be  delivered  to  his  successor,  and  said  certificate, 
or  statement  thereof  in  his  book,  shall  be  the  warrant 
of  authority  to  said  water  commissioner  for  regulating 
the  flow  of  water  in  relation  to  such  ditch,  canal  or  res- 
ervoir. Said  certificate  shall  be  recorded  at  the  same 
rates  of  charges  as  in  cases  of  deeds  of  conveyance,  ,in 
the  records  of  each  'county  into  which  the  ditch,  canal 
or  reservoir,  to  which  such  certificate  relates,  shall  ex- 
tend; and  said  certificate,  or  said  record  thereof,  or  a 
duly  certified  copy  of  such  record,  shall  be  prima  facie 
evidence  of  so  much  of  said  decree  as  shall  be  recited 
therein,  in  any  suit  or  proceeding  in  which  the  same 
may  be  relevent.  L,.  '81,  pp.  146,  147,  sec.  5;  G.  S.  '83, 
PP-  574)  575)  sec.  1767. 

Section  2405.  Clerk  publish  notice — Post  copy- 
Ten  copies  posted  by  party  petitioning.  Notice  shall 
be  given  by  the  clerk  of  said  court,  of  the  time  so 
appointed,  by  publishing  the  same  in  one  public  news- 
paper in  such  county  into  which  such  water  district 
may  extend,  which  notice  shall  be  so  published  in  such 


IRRIGATION   LAWS.  123 

paper  once  in  each  week  until  four  successive  weekly 
publications  shall  have  been  made,  the  last  of  which 
shall  be  on  a  day  previous  to  the  day  appointed  as  afore- 
said. Said  notice  shall  contain  a  copy  of  said  order, 
and  shall  notify  all  persons,  associations  and  corporations 
interested  as  owners  in  any  ditch,  canal  or  reservoir  in 
such  water  district,  to  appear  at  said  court  at  the  time 
so  appointed  and  file  a  statement  of  claim,  under  oath, 
in  case  no  statement  has  been  before  filed  by  him,  her 
or  them,  showing  the  ditch,  canal  or  reservoir,  or  two  or 
more  such,  in  which  he,  she  or  they  claim  an  interest, 
together  with  the  names  of  all  the  owners  thereof, 
which  statement  may  be  made  by  any  one  of  the  own- 
ers of  such  ditch,  canal  or  reservoir,  for  and  in  behalf  of 
all;  and  also  that  all  persons  interested  as  owners  or 
consumers  may  then  and  there  present  his,  her  or  their 
proofs  for  or  against  any  priority  of  right  of  water  by 
appropriation  sought  to  be  shown  by  any  party  by  or 
through  any  such  ditch,  canal  or  reservoir  (either  as 
owner  or  consumer  of  water  drawn  therefrom).  Ten 
printed  copies  of  said  notice  shall  be  posted  in  ten  pub- 
lic places  in  such  water  district,  not  less  than  twenty 
days  before  the  day  so  appointed,  which  copies  shall  be 
so  posted  by  the  party  or  parties  moving  the  adjudica- 
cation.  L.  '81,  p.  147,  sec.  6;  G.  S.  '83,  p.  575,  sec. 
1768;  see  sec.  2410. 

Section  2406.  Proof  of  publication — Of  posting 
copies — Entry  by  clerk.  Proof  of  the  proper  publica- 
tion of  said  notice  or  notices  in  said  public  papers  shall 
consist  in  such  case  of  the  sworn  certificate  of  the  pub- 
lisher of  such  newspaper,  showing  the  publication  to 
have  been  made  in  accordance  with  the  provisions  of 
section  three  of  this  act,  which  certificate  shall  be  pro- 
cured by  the  party  or  parties  moving  the  adjudication, 
at  his  or  their  expense,  and  on  said  certificate  being 
filed  with  the  clerk,  shall  enter  the  amount  of  the 
printer's  fee  therefor  as  costs  advanced  by  the  party 
procuring  the  same,  which  sum  shall  be  counted  to  his, 
her  or  their  credit  in  distribution  of  costs.  Proof  of 
the  posting  of  said  printed  copies  shall  be  made  by  the 
affidavit  of  some  credible  person,  certified  to  be  such  by 
the  clerk  or  other  officer  administering  the  oath,  show- 


124  IRRIGATION    LAWS. 

ing  when,  where  and  how  said  copies   were  posted.     L>. 
'81,  pp.  147,  148,  sec.  7;  G.  S.  '83,  p.  575,  sec.  1769. 

i.     Section  3  referred  to  is  sec.  2402  hereof. 

Section  2407.  Notices  served  on  all  parties — How 
served — Notice  by  mail.  The  party  or  parties  moving 
such  adjudication  shall  cause  a  printed  or  written  copy 
of  the  notice  aforesaid,  published  as  aforesaid,  to  be 
served  on  every  person,  association  or  corporation  shown 
by  the  statement  of  claim  on  file,  as  provided  in  section 
i  hereof;  which  service  shall  be  made  within  ten  days 
from  the  time  of  the  first  publication  by  the  clerk,  by 
any  credible  person  certified  by  said  clerk  or  referee  to 
be  such,  by  delivering  such  copy  as  aforesaid  to  the  per- 
son to  be  served,  if  such  person,  by  due  diligence  can 
be  found  in  the  county  of  his  residence.  If  such  person 
can  not  be  found,  as  aforesaid,  then  by  leaving  such 
copy  at  his  or  her  usual  place  of  residence,  if  he  or  she 
have  such  residence,  in  charge  of  some  person  of  the 
age  of  fourteen  years  or  over,  there  residing;  and  on  any 
corporation,  by  delivering  the  copy  to  the  president  or 
vice-president,  or  secretary  or  treasurer  thereof,  or  the 
manager  or  superintendent  in  charge  of  their  ditch, 
canal  or  reservoir,  or  authorized  agent  or  attorney,  or 
by  leaving  such  copy  at  the  office  or  usual  place  of  busi- 
ness of  such  corporation;  and  the  proof  of  such  service 
shall  be  made  by  affidavit  of  the  person  or  persons 
serving  said  copies,  showing  when  and  how  such  service 
has  been  made  on  such  party.  In  case  of  parties  not 
served  in  any  manner  as  aforesaid,  the  clerk  shall 
deposit  in  the  postoffice,  duly  enclosed  in  an  envelope, 
with  the  proper  postage  stamp  thereon,  a  copy  directed 
to  the  address  of  such  party,  shown  in  the  statement  of 
claim  aforesaid,  filed  by  him  or  her  under  section  one 
hereof.  L.  '81,  pp.  148-149,  sec.  8;  G.  S.  '83,  pp.  575- 
576,  sec.  1770. 

i.     Section  i  referred  to  is  sec.  2400  hereof. 

Section  2408.  Decree — Court  number  all  ditches- 
Reservoirs — Number  appropriations.  The  court,  in 
making  such  decree,  as  aforesaid,  shall  number  the  sev- 
eral ditches  and  canals  in  the  water  district,  concerning 


IRRIGATION   LAWS.  125 

which  adjudication  is  made,  in  consecutive  order,  accord- 
ing to  the  priority  of  appropriation  of  water  thereby 
made  by  the  original  construction  thereof,  as  near  as 
may  be,  having  reference  to  the  date  of  each  decree  as 
rendered,  and  also  number  the  reservoirs  in  like  manner 
separately  from  ditches  and  canals,  and  shall  further 
number  each  several  appropriation  of  water  consecu- 
tively, beginning  with  the  oldest  appropriation,  without 
respect  to  the  ditches  or  reservoirs  by  means  of  which 
such  appropriations  were  made  ;  whether  such  appropri- 
ation shall  have  been  made  by  means  of  construction, 
extension  or  enlargement,  which  of  each  ditch,  canal  or 
reservoir,  together  with  the  number  or  numbers  of  any 
appropriations  of  water  held  to  have  been  made  by 
means  of  construction,  extension  or  enlargement  thereof, 
shall  be  incorporated  in  said  decree  and  certificate  of  the 
clerk,  to  be  issued  to  the  claimants,  as  provided  in  section 
one  of  this  act,  so  as  to  show  the  order  in  priority  of 
such  ditch  or  canal,  and  of  such  reservoir,  and  also  of 
such  successive  appropriation  of  water  pertaining  thereto, 
for  the  information  of  the  water  commissioner  of  the 
district  in  distributing  water  ;  such  numbering  to  be  as 
near  as  may  be  having  reference  to  date  of  decrees  as 
rendered.  L.  '81,  p.  149,"  sec.  9;  G.  S.  '83,  p.  576,  sec. 
1771. 

i.     Section  i  referred  to  is  sec.  2400  hereof. 


DIVISION  VIII. 


REFEREE. 

Section  2409.  When  court  may  appoint  referee— 
What  referred.  If  for  any  cause  the  judge  of  said  court 
shall  deem  it  impracticable  or  inexpedient  to  proceed  to 
hear  such  evidence  in  open  court,  he  shall,  instead  of 
the  order  mentioned  in  section  four  of  this  act,  jmake 
and  cause  to  be  entered  of  record  an  order  appointing 
some  discreet  person  properly  qualified,  a  referee  of  said 
court,  to  whom  shall  be  referred  the  statement  of  claim 
aforesaid  on  file  in  said  matter,  the  matter  of  taking 


126  IRRIGATION   LAWS. 

evidence  and  reporting  the  same,  making  an  abstract 
and  findings  upon  the  same,  and  preparing  a  decree 
in  said  adjudication;  and  also  in  the  case  of  any  water 
district  in  which  a  referee  has  been  heretofore  appointed, 
and  evidence  taken  by  him  under  the  provisions  of  this 
act,  the  title  of  which  is  recited  in  section  four  of  this 
act;  such  evidence  so  already  taken,  together  with  the 
abstract  thereof,  and  report  to  the  referee  who  took  the 
same,  shall  be  also  referred  to  said  referee,  to  be  appointed 
as  aforesaid,  and  he  shall  proceed  with  his  duties  as 
hereinafter  provided,  first  taking  an  oath  (of)  office,  such 
as  is  required  to  be  taken  by  referees  in  other  cases 
under  the  provisions  of  the  code  of  civil  procedure.  L. 
'81,  pp.  149,  150,  sec.  10;  G.  S.  '83,  pp.  576,  577,  sec. 
1772. 

1.  Section  4  referred  in  this  section  is  sec.  2403 
hereof. 

2.  Where  a  referee  was  appointed  to  take  testimony 
by  a  district  judge,  and  the  rules  made  by  said  judge  in 
relation  to  the  taking  of  proofs  to  adjudicate  priorities 
are   alleged   to   be   inadequate,  illegal,  etc.,  mandamus 
will  not  lie  to  compel  said  judge  to   change   said   rules. 
Union  Colony  v.  Elliott,  5  Colo.,  373,  379  (1880). 

3.  In   this  case  the  general  scope  and  purpose   of 
the  act  of  1879  (L,.  '79,  p.  94,  etc.)  are  stated  at  length. 

Section  2410.  .  Referee's  notice — Contents — How 
published — Posting  copies.  Said  referee  shall  prepare 
and  publish  a  notice  containing  a  copy  of  the  order 
appointing  him,  in  which  notice  he  shall  appoint  a  time 
or  times,  and  place  or  places,  suitable  and  convenient 
for  the  claimants  in  such  water  district,  at  which  he  will 
attend  for  the  purpose  of  hearing  and  taking  evidence 
touching  the  priority  of  right  of  the  several  ditches, 
canals  and  reservoirs  in  said  district,  and  notifying  all 
persons,  associations  and  corporations  interested  as 
owners  or  consumers  of  waters  (water)  to  attend  by 
themselves,  their  agents  or  attorneys,  at  the  times  and 
places  appointed  in  said  notice,  and  notifying  such  owners 
to  then  and  there  file  a  statement  of  claim  in  case  such 
statement  has  not  already  been  filed  under  the  provisions 


IRRIGATION    LAWS.  127 

of  section  one  hereof,  such  as  mentioned  in  section  six 
hereof,  and  present  their  proofs  touching  any  priority  of 
right  claimed  by  them  for  any  ditch,  canal  or  reservoir 
in  said  district,  which  notice  shall  be  published  in  the 
same  manner  and  times,  and  in  all  respects  according  to 
the  provisions  for  publication  of  newspaper  notices  men- 
tioned in  section  six  of  this  act,  and  proof  of  such  pub- 
lication shall  be  made  in  same  manner  as  is  provided  in 
section  seven  of  this  act ;  and  he  shall  also  post  ten  or 
more  printed  copies  of  such  notice  in  ten  or  more  pub- 
lic places  in  said  district,  which  copies  shall  be  so  posted 
at  least  twenty  days  before  the  time  of  commencing  to 
take  such  evidence.  L.  '81,  p.  150,  sec.  n;  G.  S.  '83,  p. 
"577,  sec.  1773. 

i.  Sections  i,  6,  and  7  referred  to  are  sections  2400, 
2405  and  2406  hereof. 

Section  2411.  Proof  of  posting  notices.  Proof  of 
the  posting  of  said  copies  shall  be  made  by  affidavit  of 
said  referee  or  other  person  certified  by  him  to  be  a 
credible  witness,  which  shall  show  when,  where  and  how 
the  said  copies  were  posted,  and  shall  be  filed  by  him 
with  his  report.  L.  '81,  p.  151,  sec.  12;  G.  S.  '83,  p. 
577,  sec.  1774. 


DIVISION  IX. 


PROCEEDINGS  BEFORE  REFEREE. 

Section  2412.  Who  may  offer  evidence — Former 
evidence.  Said  referee  shall  attend  at  the  times  and 
places  mentioned  in  his  said  notice  for  the  purpose 
therein  mentioned,  and  all  persons  or  associations 
choosing  to  do  so,  and  being  interested  as  owners  of  or 
consumers  of  water  from  any  ditch,  canal  or  reservoir  in 
said  district,  and  may  also  attend  by  themselves,  their 
agents  or  attorneys,  before  said  referee,  at  some  one  or 
more  of  said  times  and  places  so  appointed,  and  shall 
have  the  right  to  offer  any  and  all  evidence  they  may 
think  advisable  for  their  interests  in  the  matter  to  be 


128  IRRIGATION    LAWS. 

adjudicated,  as  well  in  districts  in  which  evidence  has 
been  heretofore  taken  as  in  other  districts.  All  such 
evidence  as  has  been  heretofore  taken,  if  any,  in  such 
district,  shall  be  kept  present  by  said  referee,  subject  to 
inspection  by  any  party  desiring-  to  examine  the  same 
for  purposes  of  the  investigation.  L,.  '81,  p.  151,  sec. 
13;  G.  S.  '83,  pp.  577,  578,  sec.  1775. 

Section  2413.  Powers  and  duties  of  referee — Books 
and  records — Evidence.  Said  referee  shall  have  the 
power  to  administer  oaths  to  all  witnesses  and  to  issue 
subpoenas  for  witnesses  and  subpoenas  duces  teciim, 
which  subpoenas  may  be  served  by  any  party  or  con- 
stable or  sheriff  or  deputy  sheriff,  and  may  require  wit- 
nesses to  appear  at  any  of  the  places  appointed  by  said 
referee  for  taking  evidence.  He  shall  permit  all  wit- 
nesses to  be  examined  by  the  parties  calling  them, 
respectively,  and  to  be  cross-examined  by  any  party 
interested,  and  he  shall  take  all  testimony  in  writing 
and  note  all  objections  offered  to  any  part  of  the  testi- 
mony taken,  with  the  cause  assigned  for  the  objection, 
and  shall  proceed  in  all  other  respects  as  in  case  of  tak- 
ing depositions.  He  shall  certify  all  books  and  papers 
offered  by  any  one  in  his  own  behalf,  and  preserve  them 
with  the  testimony  offered  concerning  the  said,  and  in 
case  of  books  and  papers  offered  in  evidence,  which  shall 
not  be  under  the  control  of  the  party  desiring  the  evidence 
for  which  such  books  may  be  offered,  said  referee  shall 
make  a  true  copy  of  .the  parts  demanded  and  certify  the 
same,  and  preserve  the  same,  together  with  the  evi- 
dence offered  concerning  the  same  and  concerning  said 
books  and  papers,  as  part  of  the  evidence  in  the  matter. 
L.  '81,  pp.  151,  152,  sec.  14;  G.  S.  '83,  p.  578,  sec. 
1776. 

Section  2414.  Refusal  to  produce  books  or  papers 
— Effect.  No  person,  association  or  corporation  wil- 
fully refusing  to  produce  any  book  or  paper,  if  in  his  or 
their  power  to  do  so,  when  rightfully  demanded  for  ex- 
amination and  copying,  shall  be  allowed  the  benefit  of 
any  testimony  or  proofs  in  his,  her  or  their  behalf,  in 
making  final  adjudication,  if  the  court  shall  be  satisfied, 
from  all  the  evidence  shown  concerning  such  refusal, 


IRRIGATION   LAWS.  129 

that   the  same  was  wilfull.     L,.  '81,  p.  152,  sec.  15;  G. 
S.  '83,  p.  578,  sec.  1777. 

Section  2415.  What  facts  to  be  ascertained  by 
proofs.  Said  referee  shall  also  examine  all  witnesses  to 
his  own  satisfaction  touching  any  point  involved  in  the 
matter  in  question,  and  shall  ascertain  as  far  as  possible 
the  date  of  the  commencement  of  each  ditch,  canal  or 
reservoir,  with  the  original  size  and  carrying  capacity 
thereof,  the  time  of  the  commencement  of  each  enlarge- 
ment thereof,  with  the  increased  carrying  capacity 
thereby  occasioned,  the  length  of  time  spent  in  such 
construction  or  enlargement,  the  diligence  with  which 
the  work  was  prosecuted,  the  nature  of  the  work  as  to 
difficulty  of  construction,  and  all  such  other  facts  as 
may  tend  to  show  compliance  with  the  law  in  acquiring 
the  priority  of  right  claimed  for  such  ditch,  canal  or  res- 
ervoir; and  upon  all  the  facts  so  obtained  shall  be  deter- 
mined the  relative  priorities  among  the  several  ditches, 
canals  and  reservoirs,  the  volume  or  amount  of  water 
lawfully  appropriated  by  each,  as  well  as  by  means  of 
the  construction,  as  by  the  enlargements  thereof,  and 
the  time  when  each  such  several  appropriations  took 
effect.  L.  '81,  p.  152,  sec.  16;  G.  S.  '83,  p.  578,  sec. 
1778. 

Section  2416.  Disturbing  proceedings — Penalty. 
Every  person  present  before  said  referee  at  any  time 
when  he  shall  be  engaged  in  hearing  testimony,  who 
shall  wilfully  disturb  the  proceedings;  and  every  person 
who  shall  wilfully  refuse  or  neglect  to  obey  any 
supboena  issued  by  said  referee,  when  his  lawful  fees 
shall  be  tendered  him  for  his  attendance  before  the  ref- 
eree, shall  be  guilty  of  contempt  of  the  court  appoint- 
ing such  referee,  and  on  complaint  under  oath  of  the 
referee  or  other  person,  before  the  said  district  court,  or 
judge  thereof  in  vacation,  may  be  brought  before  the 
court  or  judge  and  dealt  with  accordingly.  L.  '81,  pp. 
152,  153,  sec.  17;  G.  S.  '83,  pp.  578,  579,  sec.  1779. 

Section  2417.  Fees  of  witnesses — By  whom  paid. 
Every  witness  who  shall  attend  before  said  referee  un- 
der subpoena  by  request  of  any  party,  shall  be  entitled 
to  the  same  fees  and  mileage  as  witnesses  before  the  dis- 

9—1.  L. 


130  IRRIGATION    LAWS. 

trict  court  in  the  county  in  which  he  shall  so  attend, 
and  shall  be  paid  by  the  party  requiring  his  testimony. 
L.  '81,  p.  153,  sec.  18;  G.  S.  '83,  p.  579,  sec.  1780. 

Section  2418.  Duties  of  referee — Rights  of  parties 
— Adjournment — Notice.  The  said  referee  shall  take 
all  the  testimony  offered,  and  for  that  purpose  shall 
give  reasonable  opportunity  to  all  parties  to  be  heard, 
and  may  at  any  place,  when  the  time  limited  thereat 
shall  expire,  adjourn  the  further  taking  of  testimony 
then  proposed  or  desired  to  be  offered  to  the  next  place 
in  order,  according  to  his  said  published  appointments, 
and  at  the  last  place  may  continue  until  all  testimony 
shall  be  taken,  or  make  further  appointment  at  any 
former  place  or  places  as  may  seem  best  and  most  con- 
venient for  all  parties,  giving  reasonable  notice  thereof. 
L.  '81,  p.  153,  sec.  19;  G.  S.  '83,  p.  579,  sec.  1781. 

Section  2419.  Referee  shall  examine  all  testi- 
mony— Numbering — Findings — Decree — Report.  Said 
referee,  upon  closing  the  testimony,  shall  proceed  to 
carefully  examine  the  same,  together  with  all  testimony 
and  proofs  which  may  have  been  heretofore  taken  by  any 
former  referee  in  the  same  district,  if  any  such  shall  have 
been  taken,  under  the  provisions  of  said  act,  the  title 
of  which  is  recited  in  section  four  of  this  act.  He  shall 
make  an  abstract  of  all  the  testimony  and  proofs  in  his 
possession  concerning  each  ditch,  canal  and  reservoir 
separately,  and  shall  number  each  ditch  and  canal  in 
order,  and  likewise  each  reservoir,  each  class  consecu- 
tively, and  also  number  the  several  appropriations  of 
water  shown  by  the  evidence,  all  in  manner  and  form  as 
provided  in  section  nine  hereof;  and  shall  make  a  sepa- 
rate finding  of  all  the  facts  connected  with  each  ditch, 
canal  and  reservoir,  touching  which  evidence  shall  have 
been  offered;  and  he  shall  prepare  a  draft  of  a  decree  in 
accordance  with  his  said  findings,  in  substance  the  same 
as  the  decree  mentioned  in  section  four  of  this  act,  and 
conformable  also  to  the  provisions  of  section  nine  here- 
of, so  far  as  the  same  are  applicable;  which  decree,  so 
prepared  by  him,  shall  be -returned  with  his  report  to 
the  court;  and  he  shall  file  his  report  with  said  evidence, 
abstract  and  findings,  and  said  decree,  with  the  clerk  of 

o     ' 


IRRIGATION   LAWS.  131 

the  court,  and  inform  the  judge  of  so  doing,  without 
delay.  L.  '81,  pp.  i53-*54>  sec.  20;  G.  S.  '83,  p.  579, 
sec.  1782. 

1.  Sections  four  and   nine  referred  to  herein  are 
respectively  sections  2403  and  2408  hereof. 

2.  Instance    of    referee's    proceedings.     Dorr    v. 
Hammond,  7  Colo.  80  (1883). 

Section  2420.  Filing  report — Court  proceed  to 
determine — Exceptions — Approval — Entry.  Upon  the 
filing  of  said  report  the  court,  or  judge  thereof  in  vaca- 
tion, shall  cause  an  order  to  be  entered  setting  some  day 
in  a  regular  or  special  term  of  court  as  soon  as  prac- 
ticable, when  the  court  shall  proceed  to  hear  and  deter- 
mine the  report;  at  which  time  any  party  interested  may 
appear  by  himself  or  counsel  and  move  exceptions  to 
any  matter  in  the  findings  or  decree  made  by  said  referee; 
and  after  hearing  the  same  the  court  shall,  if  the  decree 
reported  be  approved,  cause  the  same  to  be  entered  of 
record,  or  otherwise,  such  modifications  thereof  or  other 
decree  as  shall  be  found  just  and  conformable  to  the 
evidence  and  the  true  intent  of  this  act,  and  to  so  much 
of  any  and  all  former  laws  of  the  state  as  shall  be 
adjudged  consistent  therewith.  L.  '81,  p.  154,  sec.  21; 
G.  S.  '83,  pp.  579-580. 

i.  Referee's  judgment  on  weight  of  evidence  may 
be  reviewed.  Dorr  v.  Hammond,  7  Colo.,  80  (1883). 


DIVISION  X. 


GENERAL  PROVISIONS. 

Section  2421.  Failure  to  offer  evidence — Water 
commissioner  disregard  claims  until,  etc.  —  Party 
obtain  decree  and  present  certificate.  No  claim  of 
priority  of  any  person,  association  or  corporation  on  ac- 
count of  any  ditch,  canal  or  reservoir,  as  to  which  he, 
she  or  they  shall  have  failed  or  refused  to  offer  evi- 
dence under  any  adjudication  herein  provided  for  or 
heretofore  provided  for  by  said  act,  the  title  of  which  is 


132  IRRIGATION   LAWS. 

recited  in  section  four  hereof,  shall  be  regarded  by  any 
water  commissioner  in  distributing  water  in  times  of 
scarcity  thereof,  until  such  time  as  such  party  shall 
have  by  application  to  the  court  having  jurisdiction,  ob- 
tained leave  and  made  proof  of  the  priority  of  right  to 
which  such  ditch,  canal  or  reservoir  shall  be  justly  en- 
titled, which  leave  shall  be  granted  in  all  cases  upon 
terms  as  to  notice  to  other  parties  interested,  and  upon 
payments  of  all  costs,  and  upon  affidavits  or  petitions 
sworn  to,  showing  the  rights  claimed,  and  the  ditches, 
canals  or  reservoirs,  with  the  names  of  the  owners 
thereof  against  which  such  priority  is  claimed,  nor  until 
a  decree  adjudging  such  priority  to  such  ditch,  canal  or 
reservoir  has  been  entered,  and  certificate,  such  as  men- 
tioned in  section  four  hereof,  shall  have  been  issued  to 
claimant  and  presented  to  the  water  commissioner.  L. 
'8l>  PP-  *54»  i55>  sec.  22;  G.  S.  ,83,  p.  580,  sec.  1784. 

1.  Section  4  referred  to  is  sec.  2403  hereof. 

2.  Testimony  in  former  cases  when  available,  sec. 
2426. 

Section  2422.  Rights  of  parties  against  referee  for 
neglect,  oppression,  etc.  Every  party  interested  shall 
have  the  right  to  complain  to  the  court  of  any  act  of 
wilfull  neglect  or  oppression  on  the  part  of  the  said 
referee  in  exercising  his  powers  under  this  act,  whereby 
such  party  shall  have  been  agrieved,  either  by  refusal 
of  said  referee  to  hear  or  take  evidence  offered,  or  by 
preventing  reasonable  opportunity  to  offer  such  evidence; 
and  the  court  may  order  such  proceedings  in  the  prem- 
ises as  will  give  redress  of  the  grievance,  at  the  cost  of 
said  referee,  if  he  appear  wilfully  in  fault,  otherwise  in 
case  of  accident  or  mistake,  costs  will  be  awarded  as  to 
the  court  shall  seem  just.  L.  '81,  p.  155,  sec.  23;  G.  S. 
'83,  p.  580,  sec.  1785. 

Section  2423.  Power  of  court  to  make  just  rules — 
Law  construed  liberally.  The  district  court,  or  judge 
thereof  in  vacation,  shall  have  power  to  make  all  orders 
and  rules  consistent- with  this  act  which  may  be  found 
necessary  and  expedient  from  time  to  time  during  the 
progress  of  the  case  for  carrying  out  the  intent  of  this 


IRRIGATION   LAWS.  133 

act,  and  of  all  parts  consistent  therewith  of  the  said  act, 
the  title  of  which  is  recited  in  section  four  hereof;  as 
well  touching-  the  proceedings  in  court  as  of  the  acts  and 
doings  of  said  referee,  for  the  purpose  of  securing  to  any 
party  aggrieved  by  the  acts  of  said  referee,  or  any  pro- 
ceeding of  the  court,  opportunity  for  redress;  and  this 
act  shall  be  construed  liberally  in  all  courts  in  favor  of 
securing  to  all  persons  interested  the  just  determination 
and  protection  of  their  rights.  L.  '81,  p.  155,  sec.  24; 
G.  S.  '83,  pp.  580,  581,  sec.  1786. 

1.  Section  4  referred  to  is  sec.  2403  hereof. 

2.  This  section  referred  to  in  Golden  Canal  Co.  v. 
Bright,  8  Colo.,  155  (1884). 

Section  2424.  Party  must  file  claim  before  offering 
evidence.  No  persons,  association  or  corporation  repre- 
senting any  ditch,  canal  or  reservoir  shall  be  permitted 
to  give  or  offer  any  evidence  before  said  referee  until  he, 
she  or  they  shall  have  filed  a  statement  of  claim  in  sub- 
stance the  same  in  all  respects  as  is  required  to  be  filed 
under  the  provisions  of  section  one  hereof.  L.  '81,  p. 
155,  sec.  25;  G.  S.  '83,  p.  581,  sec.  1787. 

1.  Section  i  referred  to  is  sec.  2400  hereof. 

2.  Filing  statement  of  claim.     Sec.  2400. 

Section  2425.  Re- argument — Review — Limitation 
two  years.  The  district  court,  or  judge  thereof  in  vaca- 
tion, shall  have  power  to  order  for  good  cause  shown, 
and  upon  terms  just  to  all  parties  and  in  such  manner  as 
may  seem  meet,  a  re-argument  or  review,  with  or  with- 
out additional  evidence,  of  any  decree  made  under  the 
provisions  of  this  act,  whenever  said  court  or  judge  shall 
find  from  the  cause  shown  for  that  purpose  by  any  party 
or  parties  feeling  aggrieved  that  the  ends  of  justice  will 
be  thereby  promoted;  but  no  such  review  or  re-argument 
shall  be  ordered  unless  applied  for  by  petition  or  other- 
wise within  two  years  from  the  time  of  entering  the  de- 
cree complained  of.  L.  '81,  p.  156,  sec.  26;  G.  S.  '83, 
p.  581,  sec.  1788. 


134  IRRIGATION    LAWS. 

Section  2426.  Testimony.  Whenever  testimony 
shall  or  may  be  taken  in  any  district  created  by  this  act, 
for  the  purpose  of  procuring  decree  as  to  appropriation 
of  water  and  priorities  thereof,  under  the  statutes  of  this 
state,  any  testimony  theretofore  taken  before  any  former 
referee  may  be  introduced,  and  shall  be  received  as  evi- 
dence. L.  '85,  p.  259,  sec.  28. 


DIVISION  XL 


APPEALS. 

Section  2227.  Who  may  appeal — Statement — 
Approval — Contents — Order — Bond— Conditions.  Any 
party  or  parties  representing  any  ditch,  canal  or  reser- 
voirs, or  any  party  or  parties  representing  two  or  more 
ditches  canals  or  reservoirs,  which  are  affected  in  com- 
mon with  each  other  by  any  portion  of  such  decree,  by 
which  lie  or  she  or  they  may  feel  aggrieved,  may  have 
an  appeal  from  said  district  court  to  the  supreme  court, 
and  in  such  case  the  party  or  parties  joining,  desir- 
ing an  appeal,  shall  be  the  appellants,  and  the  parties 
representing  any  one  or  more  ditches,  canals  or  reservoirs 
affecting  in  common  adversely  to  the  interests  of  appel- 
lants shall  be  the  appellees.  The  party  or  parties  join- 
ing in  such  appeal  shall  file  a  statement  in  writing,  ver- 
ified by  affidavit  properly  entitled  in  such  cause  in  the 
district  court,  which  statement  shall  show  that  the  appel- 
lants claim  a  valuable  interest  in  the  ditch,  canal  or  res- 
ervoir, or  two  or  more  of  such,  which  are  affected  in 
common  with  each  other  by  some  portion  of  said  decree, 
also  stating  the  name  or  names  or  otherwise  the  descrip- 
tion of  the  same,  and  the  name  or  names  or  otherwise 
the  description  of  any  one  or  more  other  ditches,  canals 
(or)  reservoirs,  which  by  said  decree  derive  undue  advan- 
tage in  respect  of  priority  as  against  that  or  those  repre- 
sented by  appellants;  and  also  setting  forth  the  name  or 
names  of  the  party  or  parties  claiming  such  other  one 
or  more  ditches,  canals  or  reservoirs  affected  in  common 
by  said  decree  adversely  to  the  interest  of  appellants, 
and  praying  that  an  appeal  be  allowed  against  such 


IRRIGATION    LAWS.  135 

other  parties  as  appellees.  If  the  court  or  judge  in  vaca- 
tion on  examination,  find  such  statement  in  accordance 
with  the  statements  of  4claim  filed  by  the  parties  named 
as  appellees,  mentioned  in  section  one  of  this  act,  he 
shall  approve  the  same  and  make  an  order  to  be  pre- 
pared and  presented  by  the  appellants  allowing  the 
appeal  and  showing  the  name  or  names  of  the  appellants 
and  appellees,  with  the  name  or  names  or  description  of 
the  one  or  more  ditches,  canals  or  reservoirs  claimed  by 
the  party  or  parties  appellant  and  appellee,  as  shown  by 
their  several  statements  of  claim  filed  as  aforesaid, 
before  the  taking  of  testimony,  and  fixing  the  amount  of 
the  appeal  bond  which  bond  shall  be  executed  by  one 
or  more  of  appellants,  as  principal  or  principals,  and  by 
sufficient  securities,  and  approved  by  the  court  or  judge 
in  vacation,  and  shall  be  conditioned  for  the  payment  of 
all  costs  which  may  be  awarded  against  the  appellants 
or  any  of  them  in  the  supreme  court:  L.  '81,  pp.  156, 
157,  sec.  27;  G.  S.  '83,  pp.  581,  582,  sec.  1789. 

1.  Section  i  of  this   act  referred   to   last  above  is 
sec.  2400  hereof. 

2.  This  section  referred  to  in  Golden  Canal  Co.  v. 
Bright,  8  Colo.,  155  (1884). 

3.  Instance  of  appeal  from  report  of  referee.     Dorr 
v.  Hammond,  7  Colo.,  80  (1883). 

4.  Where  proofs  are  mainly  taken  by  a  master  or 
referee  it  is  the  duty  of  the  supreme  court  to  sift  and 
weigh  all  the  evidence  with  a  view  to  a  just  determina- 
tion,   uninfluenced   by   the  proposition  that  the  court 
below  had  superior  facilities  to  judge  of  the  credibility 
of  witnesses.     Sieber  v.  Frink,  7  Colo.,  152  (1883);  Mil- 
ler v.  Taylor,  7  Id.,  45  (1881);  Jackson  v.  Allen,  4  Id., 
268  (1878);  Bates  v.  Wilson,  24  Pac.  Rep.,  99  (1890);  14 
Colo. 

5.  But  this  rule  does  not  apply  where  the  case  was 
heard  on  testimony  taken  at  a  prior  trial  and  also  upon 
parol  testimony  at  the  hearing.     Bergh  v.  Rominger,  24 
Pac.  Rep.,  1047  (zSQo);  14  Colo. 


136  IRRIGATION    LAWS.     . 

Section  2428.  Copy  of  order  served  on  appellees — 
Publication — Posting  copies — Proof.  The  order  last 
aforesaid  shall  be  entered  of  record  and  the  appellant  or 
appellants  shall  cause  a  certified  copy  thereof  to  be 
served  on  each  of  the  appellees,  by  delivering  the  same 
to  him  or  her,  if  he  or  she  may  be  found,  or  otherwise 
serving  the  same  in  manner  the  same  as  may  be  at  the 
time  provided  for  serving  summons  from  the  district 
court  by  the  laws  then  in  force,  and  shall  also  cause  the 
said  order  to  be  published  in  the  same  manner  as  the 
notices  required  to  be  published  by  the  referee  men- 
tioned in  section  eleven  of  this  act,  and  proof  of  the 
publication  in  any  newspaper  shall  be  the  same  as  in 
case  of  said  referee's  notice,  and  proof  of  the  posting  of 
the  ten  printed  copies  in  the  district  shall  be  by  affidav- 
it of  the  party  posting  the  same,  with  the  certificate  of 
the  clerk  of  the  district  court  appealed  from,  that  the 
affiant  is  a  known  and  credible  person.  L.  '81,  p.  157, 
sec.  28;  G.  S.  '83,  p.  582,  sec.  1790. 

i.     Section  n  referred  to  is  sec.  2410  hereof. 

Section  2429.  Transcript  to  be  filed  in  six  months 
— Bill  of  exceptions.  The  appellant  or  appellants  shall 
file  transcript  of  record  of  the  district  court  with  the 
clerk  of  the  supreme  court  at  any  time  within  six 
months  after  the  appeal  shall  be  allowed  as  aforesaid. 
Only  so  much  of  the  decree  appealed  from,  and  so  much 
of  the  evidence  as  shall  affect  the  appropriations  of 
water  claimed  by  means  of  the  construction  or  enlarge- 
ment or  re-enlargement  of  the  several  ditches,  canals 
and  reservoirs  mentioned  in  the  order  allowing  the 
appeal,  need  be  copied  into  the  bill  of  exceptions.  L. 
'81,  pp.  157,  .158,  sec.  29;  G.  S.  '83,  p.  582,  sec.  1796. 

Section  2430.  Costs  in  supreme  court.  The 
supreme  court  on  dismissal  of  such  appeal,  or  on  affirm- 
ing or  reversing  the  parts  of  the  decree  appealed  from, 
in  whole  or  in  part,  shall  award  costs,  as  in  its  discre- 
tion shall  be  found  and  held  to  be  equitable.  L.  '81, 
p.  158,  sec.  30;  G.  S.  '83,  p.  582,  sec.  1792. 

Section  2431.  Supreme  court  amend  or  make  new 
decree,  or  remand  with  instructions.  The  supreme 


IRRIGATION    LAWS.  137 

court  in  all  cases  in  which  judgment  is  rendered  and 
any  part  of  the  decree  appealed  from  is  reversed,  and  in 
which  it  may  be  practicable,  shall  make  such  decree  in 
the  matters  involved  in  the  appeal  as  should  have  been 
made  by  the  district  court,  or  direct  in  what  manner  the 
decree  of  that  court  shall  be  amended.  L.  '81,  p.  158, 
sec.  31;  G.  S.  '83,  p.  582,  sec.  1793. 

Section  2432.  Filing  proof  of  service  and  notice 
— Sixty  days — Supreme  court  makes  rules.  The  said 
proof  of  the  service  and  publication  of  said  order  allow- 
ing the  appeal  shall  be  filed  with  the  clerk  of  the 
supreme  court  within  sixty  days  after  the  making  of 
said  order,  and  if  not  so  filed  the  supreme  court  shall, 
on  motion  of  the  appellee  or  any  of  the  appellees,  at  any 
time  after  such  default  in  filing  said  proof  and  before 
the  said  proof  shall  be  filed,  dismiss  such  appeal,  and  if 
the  transcript  of  record  be  not  filed  within  the  time 
limited  by  sec.  29  of  this  act  such  appeal  shall,  on 
motion,  be  dismissed.  After  the  filing  of  the  record  and 
proof  of  service,  aforesaid,  the  cause  on  appeal  shall  be 
proceeded  with  as  the  rules  of  the  supreme  court,  or 
such  special  rules  as  said  court  may  make  in  such  cases, 
and  their  order  from  time  to  time  thereunder  may 
require.  Said  court  shall  have  power  to  make  any  and 
all  such  rules  concerning  such  appeals  as  may  be  neces- 
sary and  expedient  in  furtherance  of  this  act,  as  well  as 
to  preparation  of  the  case  for  submission,  as  to  supply- 
ing deficiencies  of  record,  if  any,  and  for  avoiding 
unnecessary  costs  and  delay.  L.  '81,  p.  158,  sec.  32;  G. 
S.  '83,  pp.  582,  583,  sec.  1794. 

i.     Section  29  referred  to  is  sec.  2429  hereof. 

Section  2433.  Court  may  dismiss  referee — Vacancy 
—New  appointment.  The  district  court,  or  judge 
thereof  in  vacation,  in  case  of  the  death,  resignation, 
absence  or  other  disability  of  the  referee  hereby  pro- 
vided for,  or  for  any  misconduct  in  him,  or  other  good 
cause  to  such  judge  appearing,  shall  appoint  such  other 
properly  qualified  person  in  his  stead  as  he  shall  deem 
proper,  who  shall  proceed  without  delay  to  perform  all 
the  duties  of  his  office,  as  herein  pointed  out,  which 


138  IRRIGATION   LAWS. 

shall  remain  unperformed  by  his  predecessor  in  office. 
L.  '81,  p.  159,  sec.  33;  G.  S.  '83,  sec.  583,  sec.  1895. 

Section  2434.  Suits  must  be  brought  in  four  years — 
Injunctions  in  what  cases — What  districts — Commis- 
sioner's duty.  Nothing  in  this  act  or  any  decree 
rendered  under  the  provisions  thereof  shall  prevent  any 
person,  association  or  corporation,  from  bringing  and 
maintaining  any  suit  or  action  whatsoever  hitherto 
allowed  in  any  court  having  jurisdiction,  to  determine 
any  claim  of  priority  of  right  to  water  by  appropriation 
thereof  for  irrigation  or  other  purposes,  at  any  time 
within  four  years  after  the  rendering  of  a  final  decree 
under  this  act  in  the  water  district  in  which  such  rights 
may  be  claimed,  save  that  no  writ  of  injunction  shall 
issue  in  any  case  restraining  the  use  of  water  for  irriga- 
tion in  any  water  district  wherein  such  final  decree  shall 
have  been  rendered,  which  shall  effect  [affect]  the  distri- 
bution or  use  of  water  in  any  manner  adversely  to  the 
rights  determined  and  established  by  and  under  such 
decree;  but  injunctions  may  issue  to  restrain  the  use  of 
water  in  such  district  not  affected  by  such  decree,  and 
restrain  violations  of  any  right  thereby  established;  and 
the  water  commissioner  of  every  district  where  such 
decree  shall  have  been  rendered  shall  continue  to  dis- 
tribute water  according  to  the  rights  of  priority  deter- 
mined by  such  decree,  notwithstanding  any  suits  con- 
cerning water  rights  in  such  district,  until  any  suits 
between  parties  the  priorities  between  them  may 
be  otherwise  determined,  and  such  water  commissioner 
have  official  notice  by  order  of  the  court  or  judge 
determining  such  priorities;  which  notice  shall  be  in 
such  form  and  so  given  as  the  said  judge  shall  order. 
L.  '81,  p.  159,  sec.  34;  G.  S.  '83,  p.  583,  sec.  1796. 

Section  2435.  After  four  years  suit  barred.  After 
the  lapse  of  four  years  from  the  time  of  rendering  a  final 
decree  in  any  water  district,  all  parties  whose  interests 
are  thereby  affected  shall  be  deemed  and  held  to  have 
acquiesced  in  the  same,  except  in  case  of  suits  before 
then  brought;  and  thereafter  all  persons  shall  be  forever 
barred  from  setting  up  any  claim  of  priority  of  rights 
to  water  for  irrigation  in  such  water  district  adverse  or 


IRRIGATION   LAWS.  139 

contrary  to  the  effect  of  such   decree.     L.  '81,  p.  160, 
sec.-  35;  G.  S.  83,  pp.  583-584,  sec.  1797. 

Section  2436.  Compensation  of  referee — How  paid 
— His  duty  to  keep  account.  The  referee  appointed  (as 
provided)  in  this  act  shall  be  paid  the  sum  of  six  dollars 
per  day  while  engaged  in  discharging  his  duties  as 
herein  provided,  and  also  his  reasonable  and  necessary 
expenses  and  mileage  at  the  rate  of  ten  cents  for  each 
mile  actually  and  necessarily  traveled  by  him  in  going 
and  coming  in  the  discharge  of  his  duties  as  such  ref- 
eree, which  said  per  diem  allowance,  expenses  and  mile- 
age shall  be  paid  out  of  the  treasury  of  the  county  in 
which  such  water  district  shall  lie,  if  it  be  contained  in 
one  county;  and,  if  such  water  district  shall  extend  into 
two  or  more  counties,  then,  in  equal  parts  thereof, 
shall  be  paid  out  of  the  treasury  of  such  county  into 
which  such  district  shall  extend.  He  shall  keep  a  just 
and  true  account  of  his  services,  expenses  and  mileage, 
and  present  the  same  from  time  to  time  to  the  district 
court,  or  judge  in  vacation,  verifying  the  same  by  oath, 
and  the  judge,  if  he  find  the  same  correct  and  just,  shall 
certify  his  approval  thereof  thereon,  and  the  same  shall 
thereupon  be  allowed  by  the  board  of  county  commis- 
sioners of  the  county  in  which  said  water  district  shall 
lie;  but,  if  said  (water  district)  extend  into  two  or  more 
counties,  he  shall  receive  from  the  clerk  of  the  district 
court  separate  certificates,  under  seal  of  the  court,  show- 
ing the  amount  due  him  from  each  county,  upon  which 
certificate  the  board  of  county  commissioners  of  the 
respective  counties  shall  allow  the  same  on  presentation 
thereof.  L.  '81,  p.  160,  sec.  36;  G.  S.  '83,  p.  584; 
sec.  1798. 

Section  2437.  Repeal.  All  laws  and  parts  of  laws 
heretofore  in  existence  inconsistent  with  the  provisions 
of  this  act,  shall  be  and  the  same  are  hereby  repealed. 
L.  '81,  p.  160,  sec.  37;  G.  S.  '83,  p.  584,  sec.  1799. 

Section  2438.  Sheriff  not  serve  writ  outside  his 
county.  Nothing  herein  contained  shall  be  construed 
to  authorize  any  sheriff  to  serve  any  writ  outside  of  the 
limits  of  his  own  county,  or  give  effect  to  any  record  by 
way  of  notice  or  otherwise,  in  any  county  other  than 


140  IRRIGATION    LAWS. 

% 

that  in  which  it  belongs.     L.  '79,  p.  106,  sec.  31;   G.  S. 
'83,  p.  584,  sec.  1800. 

Section  2439.  Fees  of  district  clerk — How  audited 
— Paid.  The  fees  of  the  clerk  of  the  district  court  for 
a  service  rendered  under  this  act  shall  be  paid  by  the 
counties  interested  in  the  same  manner  as  the  fees  of 
the  water  commissioners,  upon  said  clerk  rendering  his 
account,  certified  by  the  district  judge  to  the  board  or 
boards  of  county  commissioners  of  the  county  or 
counties  embracing  the  water  district  is  case  of  which 
the  service  shall  have  been  rendered.  L.  '79,  p.  108,  sec. 
43;  G.  S.  '83,  p.  584,  sec.  1801. 


DIVISION  XII. 


WATER   DIVISIONS. 

Section  2440.  Water  division  constituted.  That 
for  the  better  regulating  of  the  distribution  of  water  for 
irrigation  among  the  several  ditches,  canals  and  reser- 
voirs into  which  such  water  may  be  lawfully  taken  in 
times  of  scarcity  thereof,  the  water  districts  now,  or  to 
be  hereafter,  established  by  law,  shall  be  constituted 
into  water  divisions  as  follows:  L.  '81,  p.  119,  sec.  i; 
G.  S.  '83,  p.  585,  sec.  1802. 

Section  2441.  Water  division  No.  i.  That  all 
water  districts  now  or  hereafter  to  be  formed,  consisting 
of  lands  in  the  state  of  Colorado  irrigated  by  water  taken 
from  the  South  Platte  river,  the  North  Platte  river,  the 
Big  Laramie  river,  the  north  and  middle  forks  of  the 
Republican  river,  Sandy  and  Frenchman's  creeks,  and 
the  streams  draining  into  the  said  rivers  and  creeks, 
shall  constitute  water  division  No.  i.  L.  '81,  p.  119, 
sec.  2;  G.  S.  '83,  p.  585,  sec.  1803;  amended  L.  '89,  p. 
211,  sec.  8. 

Section  2442.  Water  division  No.  2.  Arkansas  di- 
vision. "That  all  water  districts  now  or  hereafter  to  be 
formed,  consisting  of  lands  irrigated  by  water  taken 
from  the  Arkansas  river,  the  south  fork  of  the  Republi- 


IRRIGATION   LAWS.  141 

can  river,  the  Smoky  Hill  river  and  the  Dry  Cimarron 
river,  and  the  streams  draining  into  the  said  rivers,  shall 
constitute  water  division  No.  2  and  be  named  the  Ar- 
kansas division."  L.  '81,  p.  119,  sec.  2;  G.  S.  '83,  p.  585, 
sec.  1804;  amended  L.  '89,  p.  472,  sec.  4. 

Section  2443.  Water  division  No.  3.  Rio  Grande 
division.  All  water  districts  now  or  hereafter  to  be 
formed,  consisting  of  lands  watered  from  the  Rio  Grande 
river  and  its  tributaries,  shall  constitute  water  division 
No.  3  and  be  named  the  Rio  Grande  division.  L-  '81, 
p.  119,  sec.  4:  G.  S.  '83,  p.  585,  sec.  105. 

Section  2444.  Water  division  No.  4.  San  Juan 
division.  That  all  water  districts  now,  or  hereafter  to 
be  formed,  consisting  of  lands  in  the  state  of  Colorado 
watered  by  the  San  Juan  river  and  its  tributaries,  shall 
constitute  water  division  number  four  (4)  and  be  named 
the  San  Juan  division.  L.  '85,  p.  256,  sec.  2. 

Section  2445.  Water  division  No.  5,  Grand  river 
division.  That  all  water  districts  now  or  hereafter  to  be 
formed,  consisting  of  lands  in  the  state  of  Colorado 
watered  by  the  Grand  river  and  its  tributaries,  shall 
constitute  water  division  No.  5,  and  be  named  the 
Grand  river  division.  L.  '87,  p.  313,  sec.  i. 

Section  2446.  Water  division  No.  6,  Green  river 
division.  That  all  water  districts  now  or  hereafter  to  be 
formed,  consisting  of  lands  in  the  state  of  Colorado  irri- 
gated by  water  taken  taken  from  the  Green  river  and 
its  tributaries,  shall  constitute  water  division  No.  6,  and 
be  named  the  Green  river  division.  L.  '89,  p.  210, 
sec.  i. 

Section  2447.  Superintendents  of  irrigation.  That 
the  governor  shall  appoint  a  superintendent  of  irriga- 
tion for  each  of  the  water  divisions  now  existing  with- 
in the  state,  or  which  may  hereafter  be  created,  such 
superintendents  of  irrigation  to  hold  office  for  a  period 
of  two  years  from  the  date  of  their  respective  appoint- 
ments, or  until  their  successors  shall  be  appointed  and 
qualified.  The  governor  may  at  any  time  in  his  discre- 
tion remove  said  superintendents  of  irrigation,  or  any 


142  IRRIGATION    LAWS. 

of  them,  and  appoint  others  in  their  stead,  for  the 
remainder  of  said  term  of  two  years;  Provided,  That  the 
governor  shall  not  appoint  a  superintendent  of  irrigation 
in  any  district  until  the  board  of  county  commissioners 
of  some  one  or  more  of  the  counties  whose  territory, 
or  any  part  of  whose  territory  is  included  in  such  water 
district,  shall  have,  at  a  meeting  regularly  called  and 
held,  adopted  a  resolution  requesting  such  appointment 
to  be  made,  and  have  had  the  same  certified  to  the  gov- 
ernor. L,.  '87,  p.  295,  sec.  i. 

i.  He  is  superior  to  water  commissioners,  sec. 
2386. 

Section  2448.  Duties  of  superintendent.  Said 
superintendent  of  irrigation  shall  have  general  control 
over  the  water  commissioners  of  the  several  districts 
within  his  division.  He  shall,  under  the  general  super- 
vision of  the  state  engineer,  execute  the  laws  of  the 
state  relative  to  the  distribution  of  water,  in  accordance 
with  the  right  of  priority  of  appropriation,  as  estab- 
lished by  judicial  decree,  and  perform  such  other  func- 
tions as  may  be  assigned  to  him  by  the  state  engineer. 
L.  '87,  p.  296,  sec.  2. 

Section  2449.  Superintendents  may  make  regula- 
tions. Said  superintendent  of  irrigation  shall,  in  the 
distribution  of  water,  be  governed  by  the  regulations  of 
this  act,  and  acts  that  are  now  in  force;  but  for  the 
better  discharge  of  his  duties,  he  shall  have  the  author- 
ity to  make  such  other  regulations  to  secure  the  equal 
and  fair  distribution  of  water,  in  accordance  with  the 
rights  of  priority  of  appropriation,  as  may  in  his  judg- 
ment be  needed  in  his  division;  Provided,  Such  regula- 
tions shall  not  be  in  violation  of  any  part  of  this  act,  or 
other  laws  of  the  state,  but  shall  be  merely  supplemen- 
tary to  and  necessary  to  enforce  the  provisions  of  the 
general  laws  and  amendments  thereto.  Iy.  '87,  p.  296, 
sec.  3. 

Section  2450.  Appeal  to  state  engineer.  Any 
person,  ditch  company  or  ditch  owner,  who  may  deem 
himself  injured  or  discriminated  against  by  any  such 
order  or  regulation  of  such  superintendent  of  irrigation 


IRRIGATION    LAWS.  143 

shall  have  the  right  to  appeal  from  the  same  to  the  state 
engineer  by  filing  with  the  state  engineer  a  copy  of  the 
order  or  regulation  complained  of,  and  a  statement  of 
the  manner  in  which  the  same  injuriously  affects  the 
petitioner's  interest.  The  state  engineer  shall  after  due 
notice,  hear  whatever  testimony  may  be  brought  for- 
ward by  the  petitioner,  either  orally  or  by  way  of  affi- 
davits, and  through  the  superintendent  of  irrigation, 
shall  have  power  to  suspend,  amend  or  confirm  the  order 
complained  of.  L.  '87,  p.  296,  sec.  4. 

Section  2451.  When  duties  shall  commence — 
When  close — Report — Compensation.  Said  superinten- 
dent of  irrigation  shall  commence  the  discharge  of  his 
duties  in  his  division  as  soon  as  the  first  water  commis- 
sioner in  any  district  within  his  division  shall  be  called 
out,  and  shall  continue  to  discharge  his  duties  until  the 
last  water  commissioner  in  any  district  of  his  division 
ceases  to  be  needed.  Each  water  commissioner  shall 
report  immediately  to  the  superintendent  of  irrigation 
of  his  division  when  he  is  called  out  and  when  he  ceases 
to  be  needed,  and  shall  during  the  continuance  of  his 
duties,  be  under  the  control  of  the  superintendent  of  irri- 
gation of  his  division.  The  superintendent  of  irriga- 
tion shall  receive,  as  compensation,  five  dollars  per  day 
for  every  day  during  which  he  is  employed  in  the  dis- 
charge of  his  duty.  L.  '87,  p.  296,  sec.  5. 

Section  2452.  Bond  of  superintendent.  Within 
thirty  days  after  the  appointment  of  said  superintendent 
of  irrigation  it  shall  be  his  duty  to  give  bond  to  the 
amount  of  five  thousand  dollars  for  the  faithful  dis- 
charge of  his  duty,  said  bond  to  be  approved  by  the 
board  of  county  commissioners  of  -the  county  wherein 
said  superintendent  of  irrigation  may  reside,  and  to  be 
filed  in  the  office  of  the  county  clerk  and  recorder  of 
such  county.  L.  '87,  p.  297,  sec.  6. 

Section  2453.  Clerk  of  district  court  furnish  copies 
of  decrees — Register  of  priorities — tabulated  statement. 
Within  thirty  days  after  his  appointment  said  superin- 
tendent of  irrigation  shall  send  to  the  clerk  of  the  dis- 
trict court,  within  his  division  of  such  counties  as  have 


144  IRRIGATION   LAWS. 

had  rendered  by  the  district  court  of  such  county 
judicial  decrees  fixing  the  priorities  of  appropriation  of 
water  for  irrigation  purposes  for  any  water  district,  a 
notification  of  his  appointment  to  such  office,  and  shall 
request  of  the  said  clerk  a  certified  copy  of  every  decree 
of  the  district  court  establishing  priorities  of  appropria- 
tion of  water  used  for  irrigation  purposes  within  that 
district.  Thereupon,  it  shall  be  the  duty  of  such  clerk, 
within  ten  days  after  receipt  of  such  request  from  said 
superintendent  of  irrigation,  to  prepare  a  certified  copy 
of  all  decrees  of  such  district  court  establishing  priori- 
ties of  water  rights  made  within  that  district  under  the 
provisions  of  the  general  statutes  of  the  state  of  Color- 
ado, and  transmit  the  same  to  the  superintendent  of 
irrigation  requesting  it.  Said  superintendent  of  irriga- 
tion shall  then  cause  to  be  prepared  a  book  to  be 
entitled  "The  Register  of  Priorities  of  Appropriation  of 

Water   Rights   for  Water   Division   No ,  State   of 

Colorado,"  within  which  he  shall  enter  and  preserve 
such  certified  copies  of  decrees.  Said  superintendent  of 
irrigation  shall,  from  such  certified  copies  of  decrees, 
make  out  a  list  of  all  the  ditches,  canals  and  reservoirs 
entitled  to  appropriations  of  water  within  his  division, 
arranging  and  numbering  the  same  in  consecutive  order, 
according  to  the  dates  of  their  respective  appropriations 
within  his  division,  and  without  regard  to  the  number 
of  such  ditches,  canals  or  reservoirs  may  bear  within 
their  respective  water  districts.  Said  superintendent  of 
irrigation  shall  make  from  his  register  a  tabulated  state- 
ment of  all  the  ditches,  canals  and  reservoirs  in  his 
division  whose  priorities  have  been  decreed,  which 
statement  shall  contain  the  following  information  con- 
cerning each  ditch,  canal  and  reservoir  arranged  in  sep- 
arate columns:  The  name  of  the  ditch,  canal  or  reser- 
voir; its  number  in  his  division;  the  district  in  which  it 
is  situated;  the  number  of  it  in  its  proper  district,  and 
the  number  of  cubic  feet  of  water  per  second  to  which 
it  is  entitled,  and  such  other  and  further  information  as 
he  may  deem  useful  to  the  proper  discharge  of  his  duty. 
In  case  any  decrees  of  court  establishing  priorities  of 
appropriation  of  water  for  irrigation  purposes  are  made 
after  the  transmittal  of  the  copy  of  previous  decrees  to 


IRRIGATION   LAWS.  145 

the  superintendent  of  irrigation,  it  shall  be  the  duty  of 
the  clerk  of  the  court  wherein  such  decree  is  rendered 
to  transmit  to  the  superintendent  of  irrigation  of  the 
division  within  which  said  county  is  situated,  within 
ten  days  after  it  is  rendered,  a  copy  of  such  decree,  and 
the  superintendent  of  irrigation  shall  enter  the  same  in 
his  register,  such  register  to  be  filed  and  kept  in  the 
office  of  the  state  engineer.  L.  '89,  p.  297,  sec.  7. 

Section  2454.  Superintendent  may  call  out  com- 
missioner at  any  time.  Said  superintendent  of  irriga- 
tion shall  have  the  right  to  call  out  any  water  commis- 
sioner of  any  water  district  within  his  division,  at  any 
time  he  may  deem  it  necessary,  and  he  shall  have  the 
power  to  perform  the  regular  duties  of  water  commis- 
sioner in  all  the  districts  within  his  division.  L,.  '87, 
p.  298,  sec.  8. 

Section  2455.  Reports  of  commissioners  and  super- 
intendents— Contents — Enforcement  of  priority.  All 
water  conmissioners  shall  make  reports  to  the  superin- 
tendent of  irrigation  of  their  division  as  often  as  it  may 
be  deemed  necessary  by  said  superintendent.  Said 
report  shall  contain  the  following  information:  The 
amount  of  water  necessary  to  supply  all  the  ditches, 
canals  and  reservoirs  of  that  district ;  the  amount  of 
water  actually  coming  into  the  district  to  supply  such 
ditches,  canals  and  reservoirs;  whether  such  supply  is  on 
the  increase  or  decrease;  what  ditches,  canals  or  reser- 
voirs are  at  that  time  without  their  proper  supply;  the 
probability  as  to  what  the  supply  will  be  during  the 
period  before  the  next  report  will  be  required,  and  such 
other  and  further  information  as  the  superintendent  of 
irrigation  of  that  division  may  suggest.  Said  superin- 
tendent of  irrigation  shall  carefully  file  and  preserve 
such  reports,  and  shall,  from  them,  ascertain  what 
ditches,  canals  and  reservoirs  are,  and  what  are  not, 
receiving  their  proper  supply  of  water,  and  if  it  shall 
appear  that  in  any  district  in  that  division  any  ditch, 
canal  or  reservoir  is  receiving  water  whose  priority  post 
dates  that  of  the  ditch,  canal  or  reservoir  in  another  dis- 
trict, as  ascertained  from  his  register,  he  shall  at  once 
order  such  post-dated  ditch,  canal  or  reservoir  shut  down, 

10— I.  I,. 


146  IRRIGATION   LAWS. 

and  the  water  given  to  the  elder  ditch,  canal  or  reser- 
voir. His  orders  being  directed  at  all  times  to  the 
enforcement  of  priority  of  appropriation,  according  to 
his  tabulated  statement  of  priorities,  to  the  whole  divi- 
sion and  without  regard  to  the  district  within  which  the 
ditches,  canals  and  reservoirs  may  be  located.  The 
reports  of  water  commissioners  by  the  superintendents 
of  irrigation  shall  be  filed  and  kept  in  the  office  of  the 
state  engineer.  L.  '87,  p.  298,  sec.  9. 

Section  2456.  Owners  of  ditches  report  failure  to 
receive  supply  of  water — Apportionment — Report  of  com- 
missioner. In  case  any  ditch,  canal  or  reservoir  in  any 
district  within  such  superintendent  of  irrigation's  di- 
vision shall  fail  to  receive  its  regular  supply  of  water, 
the  owner  or  controller  of  such  ditch,  canal  or  reservoir 
may  report  such  fact  to  the  water  commissioner  of  that 
district,  who  shall  immediately  apportion  the  water  in 
his  district,  and  send  forthwith  by  telegram,  if  necessary, 
a  report  of  such  fact  to  the  superintendent  of  irrigation  of 
his  division,  and  thereupon  it  shall  be  the  duty  of  said 
superintendent  to  compare  such  report  with  his  register, 
and  if  any  ditch,  canal  or  reservoir  of  any  other  district 
of  his  division  is  receiving  water  to  which  any  ditch,  ca- 
nal or  reservoir  of  any  other  district  is  entitled,  he  shall 
at  once  order  the  shutting  down  of  the  post-dated  ditches, 
canals  or  reservoirs,  and  the  water  given  to  the  ditches, 
canals  or  reservoirs  having  the  priority  of  appropriation; 
Provided,  however,  -That  nothing  in  this  act  shall  be 
construed  as  interfering  with  the  priority  of  water  for 
domestic  use.  L.  '87,  p.  299,  sec.  10. 

Section  2457.  Expenses  and  salary  of  superintend- 
ents— Clerk's  fees.  The  expenses  and  salary  of  the 
superintendents  of  irrigation  shall  be  paid  pro  rata  by 
the  counties  interested,  in  the  same  manner  as  the  fees 
of  water  commissioners  are  paid,  and  the  fees  of  the 
clerks  of  the  district  courts,  for  services  rendered  under 
the  provisions  of  this  act,  shall  also  be  paid  by  the  coun- 
ties interested,  upon  the  said  clerk  rendering  his  account, 
certified  by  the  district  judge,  to  the  boards  of  county 
commissioners  of  the  counties  embraced  in  the  water 


IRRIGATION    LAWS.  147 

divisions  in  case  of  which  the  services  have  been  ren- 
dered     L.  '87,  p.  299,  sec.  ii. 


DIVISION    XIII. 


STATE   ENGINEER. 

Section  2458.  Governor  to  appoint  a  state  engi- 
neer— Office — Salary — Oath — Bond.  The  governor  shall 
appoint  a  state  engineer,  who  shall  hold  his  office  for 
the  term  of  two  years,  or  until  his  successor  shall  be 
appointed  and  qualified.  The  governor  may  at  any  time, 
for  cause  shown,  remove  said  state  engineer.  The  said 
state  engineer  shall  have  his  office  at  the  state  capitol,  in 
suitable  rooms,  to  be  provided  for  him  by  the  secretary 
of  state,  who  shall  furnish  him  with  suitable  furniture, 
postage  and  such  proper  and  necessary  stationery,  books 
and  instruments  as  are  required  to  best  enable  him  to 
discharge  the  duties  of  his  office.  He  shall  be  paid  a 
salary  of  three  thousand  dollars  per  annum,  payable 
monthly  by  the  state  treasurer,  on  warrants  drawn  by 
the  state  auditor.  The  said  state  engineer  shall,  before 
entering  on  the  discharge  of  his  duties,  take  and  sub- 
scribe to  an  oath,  before  the  judge  of  a  state  court  of 
record,  to  faithfully  perform  the  duties  of  his  office,  and 
file  said  oath  with  the  secretary  of  state,  together  with 
his  official  bond,  in  the  penal  sum  of  ten  thousand 
dollars;  said  bond  lo  be  signed  by  sureties  approved  by 
the  secretary  of  state  and  conditioned  upon  the  faithful 
discharge  of  the  duties  of  his  office,  and  for  delivering 
to  his  successor  or  other  officer  authorized  by  the  gov- 
ernor to  receive  the  same  all  moneys,  books,  instru- 
ments and  other  property  belonging  to  the  state  then  in 
his  possession  or  under  his  control,  or  with  which  he 
may  be  legally  chargeable  as  such  state  engineer.  L. 
'89,  p.  371,  sec.  i. 

1.  He    is   superior   to   water   commissioner,   sec. 
2386. 

2.  The  governor   may  appoint   a   state   engineer 
without  the   advice  and  consent  of  the  senate.     In  re. 


148  IRRIGATION    LAWS. 

Question  by  governor,  12   Colo.,   400  (1888).     See  this 
case  in  note  n  to  sec.  6,  art.  IV.,  Const. 

Section  2459.  Engineer  control  waters,  make 
measurements,  collect  data.  The  state  engineer  shall 
have  general  supervising  control  over  the  public  waters 
of  the  state.  He  shall  make  or  cause  to  be  made  care- 
ful measurements  of  the  flow  of  the  public  streams  of 
the  state  from  which  water  is  diverted  for  any  purpose 
and  compute  the  discharge  of  the  same.  He  shall  also 
collect  all  necessary  data  and  information  regarding  the 
location,  size,  cost  and  capacity  of  dams  and  reservoirs 
hereafter  to  be  constructed,  and  like  data  regarding  the 
feasibility  and  economical  construction  of  reservoirs  on 
eligible  sites,  of  which  he  may  obtain  information,  and 
the  useful  purposes  to  which  the  water  from  the  same 
may  be  put.  He  shall  also  collect  all  data  and  informa- 
tion regarding  the  snow-fall  in  the  mountains  each 
season,  for  the  purpose  of  predicting  the  probable  flow 
of  water  in  the  streams  of  the  state,  and  publish  the 
same.  L.  '89,  p.  372,  sec.  2. 

Section  2460.  Approve  designs  and  plans  for  dams 
and  embankments.  The  state  engineer  shall  approve 
the  designs  and  plans  for  the  construction  and  repair 
of  all  dams  or  reservoirs,  embankments  which  are 
built  within  the  state,  which  equal  or  exceed  ten  feet  in 
vertical  height.  L.  '89,  p.  372,  sec.  3, 

Section  2461.  State  engineer  to  have  general 
charge  of  work — Require  reports.  The  state  engineer 
shall  have  general  charge  over  the  work  of  the  division 
water  superintendents,  and  district  water  commission- 
ers, and  shall  furnish  them  with  all  data  and  informa- 
tion necessary  for  the  proper  and  intelligent  discharge 
of  the  duties  of  their  offices,  and  shall  require  them  to 
report  to  him  at  suitable  times  their  official  actions,  and 
require  of  them  annual  statements  on  blanks  to  be  furn- 
ished by  him,  of  the  amount  of  water  diverted  from  the 
public  streams  in  their  respective  divisions  and  districts, 
and  such  other  statistics  as,  in  the  judgment  of  (the) 
state  engineer  will  be  of  benefit  to  the  state.  L.  '89, 
p.  373,  sec.  4. 


IRRIGATION    LAWS.  149 

Section  2462.  Appoint  a  deputy  to  measure. 
The  state  engineer  shall,  on  request  of  any  party  inter- 
ested, and  on  payment  of  his  per  diem,  charge  and  reason- 
able expenses,  appoint  a  deputy  to  measure,  compute 
and  ascertain  all  necessary  data  of  any  canal,  dam,  res- 
ervoir or  other  construction,  as  required  or  as  may  be 
desired  to  establish  court  decrees,  or  for  filing  state- 
ments in  compliance  with  law,  in  the  county  clerk's 
records.  L.  '89,  p.  373,  sec.  5. 

Section  2463.  Perform  all  duties  imposed  upon 
him — Expenses.  The  state  engineer  shall,  without  any 
extra  pay  or  compensation  beyond  the  salary  provided 
in  section  i  of  this  act,  perform  all  duties  imposed  upon 
him  by  law,  and  shall  when  called  upon  by  the  gover- 
nor, give  his  counsel  and  services,  without  extra 
pay  or  compensation,  to  any  state  department  or  insti- 
tution; Provided,  however,  That  he  shall  be  allowed  all 
actual  traveling  and  other  necessary  expenses,  and  the 
actual  cost  of  preparing  necessary  maps  and  drawings, 
which  actual  expenses  shall  be  paid  by  the  department 
or  institution  requiring  his  services.  L.  '89,  p.  373, 
sec.  6. 

i.     Section  i  referred  to  herein  is  sec.  2458  hereof. 

Section  2464.  May  appoint  deputies  and  revoke 
the  same — Bond — Oath.  The  state  engineer  may  ap- 
point one  or  more  deputies,  as  he  may  think  proper,  for 
whos^  official  actions  he  shall  be  responsible,  and  may 
revoke  such  appointments  at  his  pleasure,  and  he  may 
also  deputize  any  person  to  do  a  particular  service;  and 
the  said  state  engineer  and  his  sureties  shall  be  respon- 
sible on  his  official  bond  for  the  default  or  misconduct 
of  his  deputies.  Such  appointment  and  revocation  shall 
be  in  writing,  under  the  signature  and  official  seal  of  the 
state  engineer,  and  shall  be  filed  in  the  office  of  the  state 
secretary  of  state.  All  persons  appointed  shall  take  and 
subscribe  to  an  oath  before  the  judge  of  a  court  of  record 
to  truly  perform  the  duties  of  the  office  to  which  he  is 
appointed,  and  such  oath  shall  be  filed  with  his  appoint- 
ment in  the  office  of  the  secretary  of  state.  In  addition 
to  the  deputies  provided  for  in  this  section,  the  state  en- 
gineer may  employ  such  assistance  in  performing  the 


150  IRRIGATION    LAWS. 

work  of  his  office  as  he  may  deem  necessary.     L,.  '89,  p. 
373>  sec-  7- 

Section  2465.  Pay  of  deputies  and  assistants.  The 
pay  of  the  deputies  and  assistants  of  the  state  engineer 
shall  not  exceed  the  sum  of  six  dollars  per  day  for  each 
day  employed,  together  with  the  actual  expenses,  and  the 
whole  amount  which  may  be  so  expended  is  hereby  lim- 
ited to  the  sum  of  forty-five  hundred  dollars  each  year. 
L.  '89,  p.  374,  sec.  8. 

Section  2466.  Require  owners  of  ditches  to  con- 
struct and  maintain  a  measuring  weir.  For  the  more 
accurate  and  convenient  measurement  of  any  water  ap- 
priated  pursuant  to  any  judgment  or  decree  rendered  by 
any  court  establishing  the  claims  of  priority  of  any  ditch, 
canal  or  reservoir,  the  owners  thereof  may  be  required 
by  the  state  engineer  to  construct  and  maintain,  under 
the  supervision  of  the  state  engineer,  a  measuring  weir 
or  other  device  for  measuring  the  flow  of  the  water  at  the 
head  of  such  ditch,  canal  or  reservoir,  or  as  near  thereto 
as  practicable.  The  state  engineer  shall  compute  and 
arrange  in  tabular  form  the  amount  of  water  that  will 
pass  such  weir  or  measuring  device  at  the  different  stages 
thereof,  and  he  shall  furnish  a  copy  of  a  statement 
thereof  to  any  water  superintendents  or  commissioners 
having  control  of  such  ditch,  canal  or  reservoir.  L.  '89, 
p.  374,  sec.  9. 

Section  2467.  Unit  of  measurement.  The  ^state 
engineer  shall  use  in  all  his  calculations,  measurements, 
records  and  reports,  the  cubic  foot  per  second  as  the  unit 
of  measurement  of  flowing  water,  and  the  cubic  foot  as 
the  unit  of  measurement  of  volume.  L.  '89,  p.  374, 
sec.  10. 

i.     Measure  by  statute  inch.     Sec.  4643. 

Section  2468.  Engineer  prepare  true  report.  The 
state  engineer  shall  prepare  and  render  to  the  governor 
a  full  and  true  report  of  his  work,  regarding  all  matters 
and  duties  devolving  upon  him  by  virtue  of  his  office, 
which  report  shall  be  delivered  at  the  time  when  the 
reports  of  other  state  officers  are  required  by  law  to  be 


IRRIGATION    LAWS.  151 

made,  in  order  that  it  may  be  laid  before  the  general 
assembly  at  each  regular  session  thereof.  L,.  '89,  p.  375, 
sec.  ii. 

Section  2469.  Repeal.  Sections  six,  seven,  eight, 
nine,  ten,  eleven  and  twelve  of  an  act  entitled  "An  act 
to  provide  for  the  appointment  of  a  state  engineer,  and 
to  define  his  duties  and  regulate  his  pay,  and  for  the 
appointment  of  his  assistants  and  the  establishment 
of  water  divisions,"  approved  March  5,  1881,  the  same 
being  general  section  eighteen  hundred  and  seven, 
eighteen  hundred  and  eight,  eighteen  hundred  and 
nine,  eighteen  hundred  and  ten,  eighteen  hundred  and 
eleven,  eighteen  hundred  and  twelve,  eighteen  hundred 
and  thirteen  of  the  general  statutes  of  the  state  of  Colo- 
rado, are  hereby  repealed.  L.  '89,  p.  375,  sec.  12. 


DIVISION   XVI. 


STATE   CONTROL. 

Section  2470.  Coal  creek  reservoir — Appropria- 
tion— Proviso.  There  is  hereby  appropriated  out  of 
any  money  in  the  state  treasury  belonging  to  the  inter- 
nal improvement  permanent  fund,  and  any  money 
which  may  hereafter  be  credited  to  said  fund  and  not 
otherwise  appropriated,  the  sum  of  twenty  thousand 
(20,000)  dollars,  or  as  much  tkereof  as  may  be  neces- 
sary, as  is  hereinafter  provided,  for  the  construction  of  a 
reservoir  at  Coal  creek,  upon  or  adjacent  to  sections 
twenty,  twenty-eight  or  thirty-four,  township  four,  south 
range  sixty-five  west,  in  the  county  of  Arapahoe,  to  store 
the  water  of  floods  for  the  purpose  of  irrigation  and 
other  beneficial  uses;  Provided,  That  no  part  of  said 
appropriation  shall  be  used  for  the  purchase  of  land, 
and  that  the  said  reservoir  shall  not  be  constructed 
except  upon  lands  the  title  to  which  shall  be  first 
re-vested  in  the  state;  and,  Provided  further,  That  all 
citizens  of  the  state  shall  have  free  and  equal  rights  to 
the  use  and  benefits  of  said  reservoir  when  constructed, 


152  IRRIGATION    LAWS. 

subject  only  to  such  reasonable  rules  and  restrictions  as 
may  be  provided  by  law  for  the  protection  of  the  prop- 
erty. L.  '89,  p.  215,  sec.  i. 

Section  2471.  State  engineer  measure  water- 
Determine  capacity — Prepare  plans.  As  soon  as  prac- 
ticable after  the  passage  and  approval  of  this  act  the 
state  engineer  shall  make  the  necessary  arrangements 
for  measuring  the  flow  of  water  in  said  Coal  creek,  with 
a  view  of  constructing  a  reservoir  of  sufficient  capacity 
to  hold  the  waters  that  may  result  from  storms  in  that 
portion  of  the  state  drained  by  said  Coal  creek  and 
above  said  reservoir.  Said  state  engineer  shall  there- 
after calculate  and  determine  the  required  capacity  of  a 
reservoir  to  store  the  waters  flowing  in  said  creek,  and 
prepare  plans  and  specifications  thereof.  L.  '89,  p.  216, 
sec.  2. 

Section  2472.  Construction  board — Private  dona- 
tions. The  governor,  state  engineer  and  attorney 
general  shall  be,  and  hereby  are  constituted  a  board  for 
the  purpose  of  constructing  said  reservoir  and  taking 
charge  of  the  same  until  otherwise  provided  by  law; 
Provided,  That  if,  after  proper  examination  and  survey, 
the  board  shall  determine  that  it  is  not  practicable  and 
feasible  to  construct  said  reservoir  at  the  place  herein 
designated,  or  that  the  same  cannot  be  properly  con- 
structed with  the  sum  appropriated  by  this  act,  together 
with  such  private  donations  and  subscriptions  as  may  be 
tendered  to  the  board,  then  no  portion  of  said  appropri- 
ation shall  be  expended,  except  so  much  as  may  have 
been  necessary  to  defray  the  expenses  of  such  examina- 
tions and  survey.  L.  89,  p.  216,  sec.  3. 

Section  2473.  Plans  and  specifications — Advertise 
for  bids.  Upon  the  preparation  of  the  plans  and  speci- 
fications by  the  state  engineer,  it  shall  be  the  duty  of 
the  said  board  to  advertise  for  bids  in  accordance .  there- 
with, and  thereupon  they  shall  let  the  contract  to  the 
lowest  responsible  bidder.  L,.  '89,  p.  216,  sec.  4. 

Section  2474.  Warrants  for  expenses.  The  auditor 
of  state  is  hereby  authorized  to  draw  warrants  for  the 
payment  of  the  expenses  of  building  said  reservoir,  upon 


IRRIGATION    LAWS.  153 

vouchers  certified  to  by  the  aforesaid  board,  not  exceed- 
ing- the  said  sum  of  twenty  thousand  (20,000)  dollars. 
L.  '89,  p.  217,  sec.  5. 

Section  2475.  Water-works  property  of  state — En- 
gineer provide  for  delivery  of  water.  That  the  said 
reservoir  and  water-works,  and  the  waters  when  so  col- 
lected and  stored,  shall  be  the  property  of  the  state,  and 
the  water  so  supplied  shall  be  turned  into  Coal  creek  or 
canal  for  the  purpose  of  supplying  water  for  appropria- 
tions heretofore  made,  or  hereafter  to  be  made,  in  the 
order  of  such  appropriation  by  the  several  canals  and 
reservoirs  taken  from  said  stream.  The  state  engineer, 
or  in  his  stead  such  person  or  persons  as  may  be  duly 
appointed  for  that  purpose  according  to  law,  shall  deter- 
mine, regulate  and  provide  for  the  delivery  of  such 
water  to  such  ditches,  canals  and  reservoirs,  according 
to  their  several  appropriations,  decrees  of  court,  capaci- 
ties and  necessities.  L.  '89,  p.  217,  sec.  6. 

Section  2476.  Shall  not  impair  acquired  rights. 
Nothing  in  this  act  shall  be  construed  so  as  to  impair 
any  rights  acquired,  or  that  may  be  acquired  under  or 
by  virtue  of  the  irrigation  laws  of  the  state  of  Colorado. 
L.  89,  p.  217,  sec.  7. 

Section  2477.  Damaging  reservoir  a  misdemeanor 
— Penalty.  Any  person  interfering  with  or  damaging 
said  reservoir  or  any  of  its  approaches  or  appurtenances, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof,  shall  be  fined  not  e*xceeding  one  thous- 
and (1000)  dollars,  or  by  imprisonment  in  the  county 
jail  not  exceeding  one  year.  L.  '89,  p.  217,  sec.  8. 

Section  2478.  Appropriation  for  preliminary 
survey  of  the  Grand,  Laramie  and  North  Platte.  That 
there  is  hereby  appropriated  out  of  any  funds  in  the 
state  treasury  belonging  to  the  internal  improvement 
fund  not  otherwise  appropriated  the  sum  of  three  thous- 
and dollars,  or  so  much  thereof  as  is  necessary  to  defray 
the  necessary  expenses  of  a  preliminary  survey  and  in- 
vestigation of  the  sources  of  the  Grand,  Laramie  and 
North  Platte  river  systems, *with  reference  to  turning  the 
unappropriated  waters  thereof  eastward  and  causing 


154  IRRIGATION    LAWS. 

them  to  flow  into  and  through  the  tributaries  of  the 
South  """latte  and  Arkansas  river  systems  for  the  purpose 
of  irrigation  and  other  beneficial  uses.  L.  '89,  p.  208, 
sec.  i. 

Section  2479.  Competent  engineers  to  be  employed 
for  surveys  and  estimates — Report.  That  the  governor, 
attorney  general  and  state  engineer  are  hereby  authorized 
to  employ  a  competent  engineer  or  engineers,  and  to 
cause  a  survey  to  be  made  of  the  sources  of  the  Grand, 
Laramie  and  North  Platte  river  systems,  and  the  tribu- 
taries thereto,  at  or  near  the  continental  divide,  and  to 
determine  whether  the  unappropriated  waters  thereof 
can  be  made  to  flow  eastward  into  and  through  the 
South  Platte  and  Arkansas  river  systems,  as  aforesaid, 
and  to  determine  the  practicability  and  feasibility  of 
such  diversion,  and  the  means  necessary  to  be  iised  to 
secure  the  same,  together  with  an  estimate  of  the  prob- 
able cost  in  detail  and  severally,  of  diverting  the  un- 
appropriated waters  from  such  stream  or  streams  as  they 
may  find  can  be  so  diverted;  and  the  person  or  persons 
to  whom  such  work  is  committed,  as  aforesaid,  shall  re- 
port thereon  to  the  governor,  attorney  general  and  state 
engineer  in  form  and  manner  as  above  provided.  L.  '89, 
p.  209,  sec.  2. 

Section  2480.  If  diversion  feasible,  plans  and 
specifications  to  be  prepared  and  contracts  let.  If  it  be 
found  from  the  report  of  such  survey  that  the  diversion 
of  waters  as  aforesaid  is  feasible  and  practicable,  and 
will  be  beneficial  to  the  state,  the  governor,  attorney 
general  and  state  engineer,  acting  as  a  commission  in 
that  behalf,  shall  proceed  without  unecessary  delay  to 
obtain  plans  and  specifications  in  relation  to  the  several 
diversions  proposed  and  determined  to  be  practicable, 
and  thereupon  shall  let  contracts  to  construct  ditches, 
canals,  dams  and  water  works  for  such  purpose  from  any 
and  all  of  such  streams  and  tributaries  belonging  to  the 
aforesaid  Grand,  lyaramie  and  North  Platte  systems, 
which  in  their  judgment  they  may  deem  expedient;  and 
all  such  contracts  and  works  to  be  done  and  performed 
under  the  supervision  of  said  commission,  and  accord- 
ing to  plans  and  specifications  by  them  adopted  in  rela- 
tion thereto.  L,.  '89,  p.  209,  sec.  3. 


IRRIGATION   LAWS.  155 

Section  2481.  Waters  and  works  property  of  state 
—How  water  applied.  That  the  said  ditches,  canals 
and  water  works,  and  the  waters  when  so  diverted, 
shall  be  the  property  of  the  state,  and  the  waters  so 
supplied  shall  be  turned  into  the  said  South  Platte  and 
Arkansas  rivers  and  their  tributaries  for  the  purpose  of 
supplying  deficiencies  of  water  for  appropriation  here- 
tofore made,  or  hereafter  to  be  made,  in  the  order  of 
such  appropriation  by  the  several  canals  and  reservoirs 
taken  from  said  streams.  The  state  engineer,  or  in  his 
stead  such  person  or  persons  as  may  be  duly  appointed 
for  that  purpose  according  to  law,  shall  determine,  reg- 
ulate and  provide  for  the  delivery  of  such  waters  to 
such  ditches,  canals  and  reservoirs,  according  to  their 
several  appropriations,  decrees  of  court,  capacities  and 
necessities.  L.  '89,  p.  210,  sec.  4. 

Section  2482.  Appropriation  for  expenses.  There 
is  hereby  appropriated  out  of  any  funds  in  the  treasury 
not  otherwise  appropriated  and  belonging  to  the  gen- 
eral internal  improvement  fund,  the  sum  of  ten  thous- 
and dollars  to  pay  for  the  construction  of  such  canals, 
ditches  and  water  works  as  may  be  so  determined  upon, 
and  to  defray  the  necessary  expenses  of  such  enterprise; 
said  sum,  or  so  much  thereof  as  is  necessary  to  be  drawn 
as  the  work  progresses,  and  as  necessity  may  require, 
upon  the  order  of  said  commission  drawn  upon  the  state 
auditor,  who  shall  issue  his  warrant  therefor  upon  the 
state  treasury;  all  bills  shall  be  audited  and  and 
approved  by  said  commission  only.  L,.  '89,  p.  210,  sec.  5. 

Section  2483.  Penitentiary  commissioners  may  use 
convict  labor  to  construct  ditches.  That  for  the  pur- 
pose of  reclaiming  by  irrigation,  state  and  other  lands, 
and  for  the  purpose  of  furnishing  work  for  the  convicts 
confined  in  the  state  penitentiary,  the  board  of  commis- 
sioners of  the  state  penitentiary  is  hereby  authorized  to 
locate,  acquire  and  construct  in  the  name  of,  and  for  the 
use  of  the  state  of  Colorado,  ditches,  canals,  reservoirs 
and  feeders,  for  irrigating  and  domestic  purposes,  and 
for  that  purpose  may  use  convict  labor  of  persons  con- 
fined, or  that  may  be  confined,  as  convicts  in  the  state 
penitentiary  at  Canon  City.  L.  '89,  p.  285,  sec.  i. 


156  IRRIGATION    LAWS. 

Section  2484.  State  engineer  survey  ditches  from 
Arkansas  river.  The  state  engineer,  under  the  direction 
of  the  board,  shall  survey,  lay  out  and  locate  a  ditch  or 
canal  upon  the  most  feasible  route  on  either  side  of  the 
Arkansas  river,  which  said  ditch  or  canal  shall  be  of  suffi- 
cient capacity  to  cover  at  least  thirty  thousand  acres  of 
good  arable  land  between  Canon  City  and  Pueblo;  Pro- 
vided, That  work  shall  only  be  commenced  and  per- 
formed upon  one  main  ditch,  canal,  reservoir  or  feeder' 
at  a  time;  that  a  second  shall  not  be  commenced  until 
the  completion  of  the  first.  L.  '89,  p.  285,  sec.  2. 

Section  2485.  Board  given  all  rights  and  powers. 
The  said  board  is  hereby  given  all  the  rights  and  pow- 
ers that  an  individual  or  corporation  now  has,  or  may 
hereafter  have,  under  the  laws  of  the  state,  or  of  the 
United  States,  to  acquire  the  right  of  way  over,  upon, 
and  to  any  lands  necessary  for  it  to  use  or  occupy  in  the 
construction  and  maintenance  of  said  ditches,  canals, 
reservoirs  or  feeders.  Iy.  '89,  p.  286,  sec.  3. 

Section  2486.  Title  shall  vest  in  state.  That  the 
title  to  all  ditches,  canals,  reservoirs  or  feeders  so  con- 
structed under  this  act  shall  vest  and  remain  in  the  state 
of  Colorado,  and  the  proceeds  thereof  shall  be  paid  into 
the  state  treasury.  L.  '89,  p.  286,  sec.  4. 

Section  2487.  Contract  for  and  lease  water  rights. 
That  when  any  part  of  any  ditch,  canal,  reservoir  or 
feeder  shall  be  constructed  under  this  act,  said  board  of 
penitentiary  commissioners  may  contract  for  and  may 
lease  water  rights  upon  such  terms  and  under  such  rules 
and  regulations  as  may  be  adopted  by  said  board  and 
approved  by  the  governor  of  the  state  to  such  individu- 
als or  corporations  as  may  desire  to  lease  the  same.  L. 
'89,  p.  286,  sec.  5. 

Section  2488.  Certificates  issued  for  subscriptions 
draw  interest — How  payable.  That  for  the  purpose  of 
aiding  in  the  construction  of  said  ditches,  canals,  reser- 
voirs and  feeders,  the  said  board  is  hereby  authorized  to 
receive  subscriptions  and  advancements  of  money  from 
persons  owning  land  along  the  line  of  said  proposed 
ditches,  canals,  reservoirs  and  feeders,  or  persons  desir- 


IRRIGATION   LAWS.  157 

ing  the  construction  of  the  same,  and  to  issue  receipts 
or  certificates  to  such  person  or  persons  so  advancing 
money  for  the  amount  thereof,  which  receipt  or  certifi- 
cate shall  draw  interest  at  the  rate  of  seven  per  cent, 
per  annum,  and  both  principal  and  interest  shall  be  pay- 
able in  water  to  be  taken  from  said  ditches,  canals,  res- 
ervoirs or  feeders,  under  such  rules  and  regulations  as 
may  be  adopted  by  said  board  and  the  state  engineer 
and  approved  by  the  governor  of  the  state.  L,.  '89,  p. 
.286,  sec.  6. 

Section  2489.  Appropriation  of  materials.  There 
is  hereby  appropriated  out  of  any  money  in  the  state 
treasury  not  otherwise  appropriated,  for  the  purpose  of 
locating  and  paying  for  powder,  fuse,  tools,  teams  and 
material  used  in  the  construction  of  said  ditches,  canals, 
reservoirs  and  feeders,  as  provided  for  in  this  act,  the 
sum  of  ten  thousand  dollars.  L.  '89,  p.  286,  sec.  7. 

Section  2490.  Repeal.  All  acts  or  parts  of  acts 
inconsistent  with  the  provisions  of  this  act  are  hereby 
repealed.  L.  '89,  p.  287,  sec.  8. 

Section  2491.  Appropriation  for  South  Boulder 
canal — Purpose.  There  is  hereby  appropriated  out  of 
the  fund  for  internal  improvement  the  sum  of  twenty- 
five  thousand  (25,000)  dollars,  or  so  much  thereof  as  may 
be  necessary,  for  the  purpose  of  making  a  survey  and 
for  the  construction  of  a  canal  along  the  western  slope 
of  the  range  for  a  distance  of  twenty  miles,  more  or 
less,  and  to  cut  across  the  range  and  connect  with  the 
South  Boulder  creek,  for  the  purpose  of  increasing  the 
supply  of  water  in  said  South  Boulder  creek  for  agricul- 
tural purposes.  L.  '89,  p.  46,  sec.  i. 

Section  2492.  Who  shall  constitute  the  board  of 
construction.  The  board  of  county  commissioners  of 
Boulder  county  and  the  state  engineer  shall  constitute 
a  board  for  the  purpose  of  making  said  survey  and 
locating  and  constructing  said  canal.  L.  '89,  p.  46, 
sec.  2. 

Section  2493.  Shall  be  in  Water  District  No.  6. 
That  said  survey  when  made  shall  be  deemed  to  be  in 
Water  District  No.  6.  L.  '89,  p.  46,  sec.  3. 


158  IRRIGATION   LAWS. 

Section  2494.  State  treasurer  shall  sell  state  war- 
rants to  provide  funds — Proviso.  The  state  treasurer  is 
hereby  authorized  and  directed  to  sell  state  warrants  be- 
longing to  the  internal  improvement  fund  or  internal 
improvement  income  fund,  for  the  purpose  of  providing 
funds  for  carrying  on  the  work  herein  provided  for, 
whenever  the  amount  of  cash  in  the  treasury  belong- 
ing to  said  fund  is  exhausted.  L,.  '89,  p.  46,  sec.  4. 

Section  2495.  Provided  such  improvement  be 
f  practicable.  Provided,  That  no  portion  of  the  funds 
appropriated  be  for  lands  upon  which  to  place  such  im- 
provements, and  no  such  improvements  shall  be  made 
if  it  be  found  impracticable  by  the  state  engineer,  after 
a  careful  survey  has  been  made,  except  that  all  expenses 
of  said  surveys  shall  be  paid  for  out  of  the  internal  im- 
provement fund.  L.  '89,  p.  47,  sec.  5. 

Section  2496.  Commission  for  purification  of  waters 
of  Clear  creek.  That  there  is  hereby  created  a  com- 
mission, consisting  of  the  state  engineer,  the  president 
of  the  faculty  of  the  state  school  of  mines,  and  the 
president  of  the  faculty  of  the  state  agricultural  college, 
for ,  the  purpose  of  making  experiments ,  and  practical 
tests  of  the  waters  of  Clear  creek  in  the  counties  of 
Gilpin,  Clear  Creek  and  Jefferson,  with  a  view  to  the 
purification  of  the  waters  of  said  stream.  L.  '89,  p.  311, 
sec.  i. 

i.  For  experimenting  in  purifying  the  waters  of 
the  streams,  lakes  and  reservoirs  of  the  state  $600.00 
was  appropriated  in  1885.  L.  '85,  p.  260. 

Section  2497.  Commission  use  due  diligence  to 
devise  plan,  make  tests — State  engineer  superintendent. 
That  said  commission  is  directed  to  use  due  diligence  in 
endeavoring  to  devise  some  practical  method  of  arrest- 
ing the  sediment  from  said  stream  below  the  stamp 
mills  located  on  the  same,  and  looking  to  the  purifica- 
tion of  said  waters.  Said  method  may  be  by  any  new 
process,  plan,  in  the  line  of  civil  engineering  or  other 
scheme  which,  after  investigation,  the  commission  may 
deem  feasible,  and  when  a  plan  to  accomplish  said  pur- 
pose is  agreed  upon  by  said  commission,  they  are 


IRRIGATION    LAWS.  159 

authorized  to  employ  all  necessary  assistance  to  have 
carried  out  a  practical  test  of  said  plan  so  far  as  the 
money  for  said  use  appropriated  in  this  act  may  permit. 
The  state  engineer  shall  superintend  such  work  accord- 
ing to  the  commissioner's  direction.  L.  '89,  p.  312, 
sec.  2. 

Section  2498.  Compensation  of  employees.  That 
the  employees  who  may  be  engaged  in  the  work,  under 
the  direction  of  the  state  engineer,  in  carrying  out  the 
tests  and  experiments  suggested  by  the  commission 
shall  be  entitled  to  such  reasonable  compensation,  for 
their  services,  as  the  commission  may  deem  proper; 
Provided,  That  in  no  case  shall  it  be  lawful  for  the  com- 
mission or  engineer,  in  carrying  out  the  plan  to  incur 
more  expense  than  the  money  herewith  appropriated 
will  liquidate.  L.  '89,  p.  312,  sec.  3. 

Section  2499.  Report  fully  its  proceedings,  results, 
etc.  That  it  shall  be  the  duty  of  said  commission  to  re- 
port fully  of  its  proceedings,  expenditures  and  results  to 
the  next  session  of  the  general  assembly  of  the  state, 
said  report  to  be  made  through  the  state  engineer's  office. 
L.  '89,  p.  312,  sec.  4. 

Section  2500.  Appropriation.  That  there  is  hereby 
appropriated  out  of  any  moneys  in  the  treasury  not  other- 
wise appropriated  the  sum  of  five  thousand  (5,000)  dol- 
lars, or  so  much  thereof  as  may  be  required  to  carry  out 
the  provisions  of  this  act.  L.  '89,  p.  312,  sec.  5. 

Section  2501.  Auditor  of  state  authorized  to  draw 
warrant.  That  the  auditor  of  state  is  hereby  authorized 
to  draw  his  warrants  upon  the  state  treasurer  in  pay- 
ment of  said  moneys  for  said  expenses  incurred,  upon 
vouchers  duly  approved  by  said  president  of  the  faculty 
of  the  state  School  of  Mines  and  president  of  the  faculty 
of  the  state  agricultural  college,  when  countersigned  by 
the  state  engineer.  L.  '89,  p.  312,  sec.  6. 

Section  2502.  Governor  appoint  commission  to 
draft  code  of  law  concerning  waters  of  state.  That 
within  ten  days  after  the  passage  of  this  act  the  gov- 
ernor, by  and  with  the  advice  and  consent  of  the  senate 


l6o  IRRIGATION    LAWS. 

shall  appoint  three  persons  as  a  commission,  whose  duty 
it  shall  be  to  draft  and  report,  for  submission  to  the  next 
general  assembly,  a  complete  revision  and  code  of  law 
concerning  the  waters  of  the  state,  as  derived  from 
natural  streams,  springs,  artesian  wells,  drainage,  perco- 
lation and  other  sources;  prescribing  the  methods, 
facilities  and  appliances  for  the  control,  regulation,  use 
and  disposition  of  said  waters,  and  providing  for  the 
official  management  thereof,  in  form  and  manner  as 
hereinafter  set  forth.  L.  '89,  p.  466,  sec.  i. 

Section  2503.  Duty  of  commissioners.  It  shall 
be  the  duty  of  said  commissioners,  upon  their  accept- 
ance of  said  appointment,  to  jointly  enter  upon  the 
work  of  drafting,  framing,  digesting  and  codifying  a 
complete  system  of  law  in  accordance  with  the  pro- 
visions of  the  constitution,  and  subject  to  rights  vested 
thereunder,  embracing  the  whole  subject  of  the  waters 
of  the  state;  whether  such  waters  are  derived  from 
natural  streams,  springs,  surface  or  underground  chan- 
nels, artesian  wells,  rainfall,  melting  snow,  flood  waters, 
percolating  and  seepage  waters,  water  collected  by 
drainage,  and  from  any  and  every  source  of  accumula- 
tion and  supply;  to  provide  for  the  appropriation,  regu- 
lation, distribution,  use  and  economy  of  the  same  for 
agricultural,  domestic,  mechanical  and  mining  purposes, 
by  canals,  reservoirs,  drains,  conduits,  pipes  or  other- 
wise; to  provide  for  the  redemption  of  swamp  and 
seepage  lands  by  drainage,  and  for  the  utilization  of  the 
water  collected  for  drainage  works,  and,  generally,  to 
formulate  a  complete  system  of  laws  in  relation  to 
waters  derived  and  collected  from  any  and  every  source 
and  used,  employed  and  disposed  of  in  the  various  and 
beneficial  uses  and  disposition  to  which  water  is  applied, 
under  conditions  existing  in  the  state,  and  to  provide 
for  the  officers,  officers'  powers  and  facilities  necessary 
to  carry  out  and  enforce  the  provisions  of  such  system 
of  law.  L.  '89,  p.  467,  sec.  2. 

Section  2504.  Limitation  of  time — Expenses,  how 
paid.  The  said  commission  shall  carry  on  its  said  work 
at  the  time  and  places  and  according  to  the  rules  and 
regulations  agreed  upon  among  the  members  thereof, 


IRRIGATION    LAWS.  l6l 

and  within  the  time  intervening  between  its  appoint- 
ment and  the  first  Monday  in  December  next  preceding 
the  sitting  of  the  next  general  assembly,  at  which  time 
it  shall  be  prepared  to  report  a  draft  for  a  code  or  system 
of  law  as  provided  in  section  two  of  this  act;  and,  for  the 
purpose  of  facilitating  its  work,  such  commission  shall 
have  power  to  employ  such  clerical  assistance  as,  in  its 
judgment,  it  shall  find  necessary  for  carrying  on  and 
completion  of  its  duties,  and  to  purchase  such  books, 
supplies  and  materials  as  shall  be  necessary  to  or  con- 
nected with  the  work  of  said  commission,  at  the  total 
expense  for  said  clerical  assistance,  books  and  materials 
and  contingent  expenses  not  to  exceed  four  thousand 
(4,000)  dollars,  which  shall  be  paid  out  of  any  moneys 
appropriated  for  that  purpose,  on  certificates  signed  by 
said  commissioners,  showing  the  services  rendered  and 
the  amount  thereof,  and  on  presentation  of  such  certifi- 
cate to  the  state  auditor  by  the  person  or  persons  en- 
titled thereto,  he  shall  issue  his  warrant  or  warrants  on 
the  state  treasurer  for  the  amount  thereof,  to  be  paid  out 
of  any  appropriation  as  aforesaid.  L.  '89,  p.  467,  sec.  3. 

i.     Section  2  referred  to  is  sec.  2503  hereof. 

Section  2505.  Report  of  commission.  The  said 
commission  shall  prepare  its  report  to  be  submitted  in 
writing  to  the  eighth  general  assembly,  which  report 
shall  be  completed  on  or  before  the  first  Monday  in  De- 
cember next  preceding  the  sitting  of  the  said  eighth 
general  assembly,  and  deliver  the  same  to  the  secretary 
of  state  on  or  before  said  date;  which  report  shall  in- 
clude the  form  of  a  bill  to  enact  the  recommendation  of 
the  commission  into  a  law,  with  a  proper  title  for  such 
proposed  enactment.  If  the  commission  shall  fail  to 
agree  upon  a  complete  report,  all  such  matters  as  are 
not  agreed  to  shall  be  submitted,  as  to  those  matters 
only,  in  a  minority  report  or  reports,  such  minority  re- 
port or  reports  to  be  also  delivered  to  the  secretary  of 
state  as  aforesaid.  It  shall  be  the  duty  of  the  secretary 
cf  state,  when  such  report  or  reports  are  delivered  to 
him,  to  cause  500  copies  of  the  same  to  be  printed  and 
bound  in  pamphlet  form,  and,  upon  the  organization  of 
the  eighth  general  assembly,  the  secretary  of  state  shall 

11— I.  :L. 


l62  IRRIGATION    LAWS. 

distribute  to  each  member  thereof  three  copies  of  each 
of  said  reports,  and  the  remainder  of  said  500  copies 
shall  be  turned  over  to  the  state  engineer,  to  be  by  him 
distributed  to  such  persons  and  corporations  as  are  in- 
terested in  the  subject-matter  thereof.  L.  '89,  p.  468, 
sec.  4. 

Section  2506.  Pay  of  commissioners.  Each  of 
said  commissioners  shall  be  entitled  to  receive  for  his 
services,  upon  the  making  of  said  report  as  herein  pro- 
vided, said  report  to  be  accepted  by  the  secretary  of 
state,  the  sum  of  two  thousand  dollars,  to  be  paid  upon 
vouchers  approved  by  the  secretary  of  state,  by  warrant 
drawn  by  the  auditor  upon  the  state  treasurer.  L.  '89, 
p.  468,  sec.  5. 

Section  2507.  Appropriation  for  expenses.  For 
the  purpose  of  paying  salaries  and  expenses  authorized 
by  this  act,  there  is  hereby  appropriated  out  of  the  gen- 
eral fund  of  the  state,  not  otherwise  appropriated,  the 
sum  of  ten  thousand  dollars,  or  so  much  thereof  as  may 
be  necessary.  L,.  '89,  p.  269,  sec.  6. 

Section  3657.  Board  may  sell  lands  to  parties  con- 
structing ditch — Bond.  For  the  purpose  of  furnishing 
irrigation  for  state  lands  the  state  board  of  land  commis- 
sioners are  hereby  authorized,  when  in  their  judgment 
the  interest  of  the  state  may  be  subserved  thereby,  to 
sell  at  public  sale,  at  such  place  as  the  board  may  fix, 
at  not  less  than  the  appraised  value  thereof,  which  in 
no  case  shall  be  less  than  the  minimum  price  of  two 
dollars  and  fifty  cents  ($2.50)  per  acre,  any  tract  of  arid 
land  belonging  to  the  state  (except  sections  sixteen  and 
thirty-six);  Provided,  That  not  more  than  one-half  sec- 
tion of  land  shall  be  sold,  and  in  alternate  half  sections, 
to  any  responsible  person  or  persons,  on  condition  that 
said  person  or  persons  construct  an  irrigating  ditch  in 
such  locality  and  of  sufficient  capacity  to  furnish  water 
for  the  entire  tract,  and  so  located  that  said  tract  may 
be  irrigated  therefrom;  Provided,  That  before  any  of  the 
state  lands  shall  be  offered  for  sale  the  party  desiring  to 
purchase  said  lands  and  construct  a  ditch  shall  enter 
into  a  contract  with  the  board  guaranteeing  to  bid  at 
least  the  minimum  price  per  acre,  and  to  complete  such 


IRRIGATION   LAWS.  163 

ditch  within  a  given  time,  which  time  shall  be  fixed  by 
the  board  in  the  contract.  The  contract  shall  further 
provide  that  the  party  constructing  such  ditch  shall  fur- 
nish water  for  the  remaining  one-half  of  the  state  lands 
at  such  reasonable  rates  as  the  board  and  the  parties 
building  such  ditch  or  canal  may  agree  upon.  Such 
contract  shall  be  drawn  by  the  attorney  general  and 
signed  by  the  governor  and  register  of  the  board  and  by 
the  party  desiring  to  construct  such  ditch;  And  pro- 
vided further,  That  if  any  person  other  than  the  person 
making  application  for  the  purchase  of  said  lands  shall 
be  the  highest  bidder  at  the  public  sale  thereof,  such 
bidder  shall,  within  such  reasonable  time  as  the  board 
may  fix,  enter  into  a  contract  and  bond,  as  required  by 
the  provisions  of  this  act,  for  the  construction  of  said 
ditch  and  for  the  furnishing  of  water  therefrom;  and  in 
the  event  of  his  failure  to  furnish  a  satisfactory  bond 
and  enter  into  the  said  contract  within  the  time  fixed, 
then  such  bid  shall  be  disregarded  and  such  public  sale 
shall  be  void  and  of  no  effect.  The  board  shall  make 
the  sale  upon  like  conditions  as  other  state  lands  are 
sold,  and  shall  require  a  good  and  sufficient  bond  from 
the  party  desiring  to  construct  such  ditch,  conditioned 
for  the  faithful  performance  of  the  contract  and  the 
conditions  of  the  sale.  And  in  no  case  shall  the  title 
to  any  of  said  lands  pass  from  the  state  until  the  ditch 
shall  have  been  completed  and  accepted  by  the  board. 
L.  '89,  pp.  381,  382,  sec.  i. 

i.  This  law  is,  in  substance,  L.  '81,  p.  226,  sec.  8; 
repealed  by  sec.  3653. 

Section  3766.  Property  exempt  from  taxation. 
The  following  classes  of  property  shall  be  exempt  from 
taxation,  to-wit:  First,  mines  and  mining  claims  bear- 
ing gold,  silver  and  other  precious  metals  (except  the 
net  proceeds  and  surface  improvements  thereof),  for  the 
period  of  ten  years  from  the  first  day  of  July,  A.  D. 
1876;  second,  ditches,  canals  and  flumes  owned  and 
used  by  individuals  or  corporations  for  irrigating  lands, 
owned  by  such  individuals  or  corporations  or  the  indi- 
vidual members  thereof,  shall  not  be  separately  taxed 
so  long  as  they  shall  be  owned  and  used  exclusively  for 


164  IRRIGATION    LAWS. 

such  purpose;  third,  the  property,  real  and  personal,  of 
the  state,  counties,  cities,  towns,  and  other  municipal 
corporations,  and  public  libraries;  fourth,  lots,  with  the 
buildings  thereon,  if  said  buildings  are  used  solely  and 
exclusively  for  religious  worship,  for  schools,  or  for 
strictly  charitable  purposes;  also,  cemeteries  not  used 
or  held  for  private  or  corporate  profit.  G.  L.  '77,  p.  742, 
sec.  2244;  G.  S.  '83,  p.  821,  sec.  2815. 

EXEMPTION. 

1.  Ditches  free  from  taxation,  sec.  2397;  see  also 
Const.  Colo.,  art.  X.,  sec.  3. 

2.  Cemeteries   exempt,  sec.    654;    see  also  Const. 
Colo.,  art.  X.,  sec.  5. 

3.  Mines  heretofore  exempt  by  the  constitution, 
taxed,  sec.  3222;   see  Const.  Colo.,  art.  X.,  sec.  3,  note  3. 

4.  United  States  property  exempt,  sec.  4570. 

5.  When  the  legal  title  is  in  the  United  States  and 
beneficial  interest  is  in  the  occupant,  the  state  can  tax 
the  lands.     County  Commrs.  v.   Cen.  Col.  Impl.  Co.,  2 
Colo.,  635  (1875),  reversed  95  U.  S.,  265  (1877).     When 
the  legal  title  is  wholly  in  the  United  States  it  is  ex- 
empt from  taxation.     Commrs.  v.  Cen.  Colo.  Impl.  Co., 
2  Colo.,  636(1875). 

6.  Ttiere  is  no  provision  constitutional,  or  statutory 
which   in   terms  requires  the  levy  of   a  tax  upon  the 
annual  net  proceeds  of  mines  and  mining  claims  bear- 
ing precious  metals.      Stanley  v.  Little   P.  Mg.  Co.,  6 
Colo.,    417    (1882);    see   Mills'    Const.    Ann.,  sec.  ^438, 
notes  55-59  and  91. 

7.  This  section  reiterates  the  permissive   language 
of  the  constitution  in  respect  to  the  taxation  of  ,the  net 
proceeds  of   mines,  but  does  not  in  terms   require   the 
levy  of  the  tax.     Id.,  see  Mills,  Const.  Ann.,  sec.  438, 
notes  55-59  and  91. 

8.  Articles  of  commerce  in  transition  are  exempt, 
but  sleeping  cars  leased  by  a  railroad  company  for  its 
use,  though   used  only  in  passing  through  the  state,  are 


IRRIGATION   LAWS.  165 

not  articles  of  commerce  so  as  to  be  exempt  from  taxa- 
tion.    Carlisle  v.  Pullman  P.  C.  Co.,  8  Colo.,  324  (1885). 

9.  The  legislature  had  power  under  art.  X. ,  sec.  3 
of  the  constitution  to  impose  a  tax  upon  mines  and  all 
mining  property.      People  v.  Henderson,  12  Colo.,  371 
(1888);  see  Mills'  Const.  Ann.,  sec.  438,  notes  78,  etc. 

10.  An  exemption  of  a  seminary  from  taxation  by 
special  charter  by  the  legislature  becomes  a  part  of  the 
contract,  and  cannot  be  impaired.     County  Commrs.  v. 
Colorado    Seminary,   12    Colo.,  499  (1889);    see    Mills' 
Const.  Ann.,  sec.  438,  notes  108,  etc. 

Section  4403.  Paragraph  58.  Mills  —  Ditches — 
Feeders.  To  authorize  the  construction  of  mills  and 
mill  races,  irrigating  or  mining  ditches  and  feeders,  on, 
through  or  across  the  streets  of  the  city  or  town,  at  such 
places  and  under  such  restrictions  as  they  shall  deem 
proper. 


DIVISION   XV. 


IRRIGATION. 

Section  4539.  May  lease  or  purchase  canal — On 
vote  of  electors.  Any  incorporated  town  or  city  in  this 
state  shall  have  power  to  purchase  or  lease  any  canal  or 
ditch  already  constructed,  or  which  may  hereafter  be 
constructed,  and  all  the  rights,  privileges,  franchises  of 
any  person  or  persons,  or  corporations  owning  the  same, 
or  having  any  interest  or  right  therein,  and  to  hold  and 
operate  the  same  in  the  same  manner  as  the  persons 
or  corporation  from  whom  the  same  may  be  purchased 
or  leased  might  otherwise  do ;  Provided,  Such  purchase 
or  lease  shall  be  made  for  the  purpose  of  supplying,  by 
said  ditch  or  canal,  water  for  the  use  of  the  people  of 
said  city  or  town ;  and  Provided  further,  That  a  majority 
of  the  qualified  electors  of  such  city  or  town,  who  shall 
vote  at  any  regular  election  which  may  be  held  for  the 
election  of  town  officers,  shall  vote  in  favor  of  said  pur- 
chase. L.  '79,  p.  198,  sec.  i;  G.  S.  '83,  pp.  1000,  1001, 
sec.  3417. 


1 66  IRRIGATION    LAWS. 

1.  See  also  as  to  right  of  way  for  water,  ditches, 
etc.,  and  issuing  bonds  for  same.     L,.  '74,  p.  298,  etc. 

2.  This  act  is  still  in  force  unless  repealed  by  sec- 
tion 4532. 

3.  See  Irrigation,  sec.  2256,  etc. 

Section  4540.  Shall  assume  all  obligations  of 
owner — Repair — Management.  Any  town  or  city  mak- 
ing such  purchase  or  lease  shall  thereby  assume  all  obli- 
gations and  other  duties  which  by  law  devolve  upon  the 
owner  or  owners  of  such  ditch  or  canal  of  whom  the 
same  may  be  purchased  or  leased  by  virtue  of  this  act ; 
and  shall  have  the  power  to  repair,  improve  or  enlarge 
the  same,  or  any  flume,  dam  or  gate  connected  there- 
with ;  and  for  such  objects  may  levy  and  collect  taxes 
in  the  same  manner  as  other  taxes  are  levied  and  col- 
lected by  law.  The  management  of  such  ditch  or  canal 
shall  be  under  the  control  of  the  board  of  trustees,  or 
council,  as  the  case  may  be,  of  such  town  or  city.  L. 
'79,  pp.  198,  199,  sec.  2;  G.  S.  '83,  p.  1001,  sec.  3418. 

1.  See  section  4403,  subdivisions  68,  69. 

2.  The  care  required  of  a  municipal  corporation 
undertaking  to  supply  to  residents  water  for  irrigation 
and  using  its  street  gutters  for  that  purpose  is  such  as  a 
man  of  average  prudence  and  intelligence  would  em- 
ploy   under    like    circumstances   to    protect    his   own 
property.     City  of  Boulder  v.    Fowler,    n  Colo.,    398, 
(1888). 


IRRIGATION    LAWS.  167 

CORPORATIONS. 


(S.  B.  53.) 

AN   ACT 


TO  PROVIDE  FOR  THE  AMENDMENT  OF  ARTICLES  OF  INCORPORATION 
OF  CORPORATIONS  ORGANIZED  UNDER  THE  LAWS  OF  COLORADO, 
AND  TO  REPEAL  AN  ACT  ENTITLED  "AN  ACT  TO  PROVIDE  FOR 
THE  AMENDMENT  OF  ARTICLES  OF  INCORPORATION  OF  INCOR- 
PORATED COMPANIES,"  EXCEPT  RAILROAD  COMPANIES,  AP- 
PROVED MARCH  25,  1885,  AND  ALL  ACTS  IN  CONFLICT  WITH  THE 
PROVISIONS  HEREOF. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  That  any  corporation  organized  under 
the  laws  of  this  state  may  amend  its  articles  of  incorpor- 
ation in  any  respect;  Provided^  No  corporation  shall,  by 
amendments,  so  change  its  articles  as  to  work  a  change 
in  the  object  or  purpose  for  which  such  corporation  was 
originally  organized;  Provided,  That  any  ditch  company 
may  amend  its  articles  so  as  to  allow  it  to  take  stock  in 
telephone  companies,  for  the  purpose  of  affording  facili- 
ties to  such  ditch  companies  in  carrying  on  their  busi- 
ness only. 

Approved  April  6,  1891. 


CORPORATIONS— DITCH     AND    RESERVOIR    COM- 
PANIES. 


(H.  B.  98.) 

AN   ACT 


TO  ENABLE  IRRIGATION  DITCH  COMPANIES  AND  RESERVOIR  COM- 
PANIES TO  EXTEND  THE  TERM  OF  TIME  OF  THEIR  INCORPORA- 
TION. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  When  the  term  of  years  for  which 
any  corporation  which  has  been  or  may  hereafter  be, 
incorporated  as  a  ditch  company,  for  the  purpose  of  car- 


1 68  IRRIGATION    LAWS. 

rying  water  for  irrigation  purposes,  or  as  a  reservoir 
company  for  the  storage  of  water  for  irrigation  purposes, 
has  expired,  or  is  about  to  expire  by  lawful  limitation, 
and  such  corporation  has  not  been  administered  upon  as 
an  expired  corporation  or  gone  into  liquidation  and  set- 
tlement and  division  of  its  affairs,  it  may  have  its  terms 
of  incorporation  extended  and  continued,  the  same  as  if 
originally  incorporated,  as  hereinafter  provided. 

SEC.  2.  Whenever  the  corporate  life  of  any  such 
ditch  or  reservoir  company  has  expired,  or  is  about  to 
expire,  as  aforesaid,  the  stockholders  of  such  company 
may  vote  upon  the  question  of  extending  the  life  of  such 
corporation  for  another  twenty  years,  or  less,  by  first 
giving  notice  of  such  intention  by  publication,  for  two 
successive  weeks,  in  the  newspaper  printed  nearest  the 
place  where  the  principal  operations  of  said  company 
are  carried  on.  Such  notice  shall  be  signed  by  stock- 
holders owning  at  least  ten  per  cent,  of  the  entire  cap- 
ital stock  of  said  company,  and  shall  state  the  place 
where  and  the  time  when  the  question  of  renewal  will 
be  submitted  to  the  votes  of  the  stockholders  of  said 
company,  at  the  meeting  held  in  pursuance  of  such 
notice,  provided  a  majority  of  the  stock  of  the  corpora- 
tion be  represented.  The  votes  shall  be  taken  by  bal- 
lot, and  each  stockholder  shall  be  entitled  to  as  many 
votes  as  he  owns  shares  of  stock  in  said  company  or 
holds  proxies  therefor;  and,  if  a  majority  of  the  votes 
cast  shall  be  in  favor  of  a  renewal  of  the  corporation, 
the  president  and  secretary  of  said  company  shall, 
under  the  corporate  seal  of  said  company,  certify  the 
fact,  and  shall  make  as  many  certificates  as  may  be 
necessary,  so  as  to  file  one  in  the  office  of  the  recorder 
of  deeds  in  each  county  where  they  may  do  business 
and  one  in  the  office  of  the  secretary  of  state;  and  there- 
upon the  corporate  life  of  said  company  shall  be 
renewed  for  another  term  of  not  exceeding  twenty  (20) 
years,  upon  filing  the  declaration  aforesaid,  and  all 
stockholders  shall  have  the  same  rights  in  the  renewed 
corporation  as  they  had  in  the  company  as  originally 
formed. 

SEC.  3.  Whereas,  in  the  opinion  of  the  General 
Assembly  an  emergency  exists;  therefore,  this  act 


IRRIGATION    LAWS.  169 

shall    take   effect   and   be   in  force  from  and  after  its 
passage. 

Approved  March  19,  1891. 


CORPORATIONS.— DITCH  COMPANIES. 


(S.  C.  331  ) 

AN   ACT 

TO  AMEND  SECTIONS  72,  73  AND  102  OF  CHAPTER  XIX.,  THE  SAME  BE- 
ING GENERAL  SECTIONS  308,  309  AND  338  OF  THE  GENERAL  STA- 
TUTES OF  THE  STATE  OF  COLORADO,  ENTITLED  "CORPORA- 
TIONS." 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  Section  72  of  chapter  XIX.,  being 
general  section  308  of  the  General  Statutes  of  the  State 
of  Colorado,  is  hereby  amended  so  as  to  read  as  follows, 
viz  : 

308.  SEC.  72.     When  any  three  or  more  persons 
associate  under  the  provisions  of  this  chapter  to  form  a 
corporation  for  the  purpose  of  constructing  a  ditch,  res- 
ervoir, pipe-line  or  any  thereof,   for  the  purpose  of  con- 
veying water  from  any  natural  or  artificial  stream,  chan- 
nel or  source  whatever  to  any  mines,  mills  or  lands,  or 
storing  the  same,  they  shall  in  their  certificate,  in  addi- 
tion to  the  matters  required  in  section  2  of  this  chapter, 
specify  as  follows,  viz  :  the  stream,  channel  or  source 
from  which  the  water  is  to  be  taken,  the  point  or  place 
at  or  near  which  the  water  is  to  be  taken  out,  the  loca- 
tions as  near  as  may  be  of  any  reservoir  intended  to  be 
constructed,  the  line  as  near  as  may  be  of  any  ditch  or 
pipe-line   intended   to  be  constructed,   and  the  use   to 
which  the  water  is  intended  to  be  applied. 

SEC.  2.  Section  73  chapter  XIX.,  being  general 
section  309  of  the  General  Statutes  of  the  State  of  Colo- 
rado, is  hereby  amended  so  as  to  read  as  follows,  viz  : 

309.  Section    73.     Any  ditch,   reservoir   or    pipe 
line    company   formed    under    the   provisions   of    this 
chapter,  shall  have  the  right  of  way  over  the  line  named 


170  IRRIGATION   LAWS. 

in  the  certificate,  and  shall  also  have  the  right  to  run 
water  from  the  stream,  channel  or  water  source,  whether 
natural  or  artificial  named  in  the  certificate  through  its 
ditch  or  pipe  line,  and  store  the  same  in  any  reservoir 
of  the  company  when  not  needed  for  immediate  use; 
Provided,  That  the  line  proposed  does  not  interfere  with 
any  other  ditch,  pipe-line  or  reservoir,  having  prior 
rights,  except  |the  right  to  cross  by  pipe  or  flume;  nor 
shall  the  water  of  any  stream,  channel  or  other  water 
course,  whether  natural  or  artificial,  be  diverted  from 
its  original  channel  or  course,  to  the  detriment  of  any 
person  or  persons  having  priority  of  right  thereto,  but 
this  shall  not  be  construed  to  prevent  the  appropriation 
and  use  of  any  water  not  theretofore  utilized  and  ap- 
plied to  beneficial  uses. 

SEC.  3.  Section  102  of  chapter  XIX.,  being  gen- 
eral section  338  of  the  General  Statutes  of  the  State  of 
Colorado,  is  hereby  amended  so  as  to  read  as  follows,  viz: 
338.  Section  102.  If  any  corporation  formed  for  pur- 
pose of  constructing  a  road,  ditch,  reservoir,  pipe -line, 
bridge,  ferry,  tunnel,  telegraph  line  or  railroad  line, 
shall  be  unable  to  agree  with  the  owner,  for  the  purchase 
of  any  real  estate  or  right  of  way  or  easement,  or  other 
right  necessary  or  required  for  the  purpose  of  any  such 
corporation,  for  transacting  its  business,  or  for  the  right 
of  way  or  any  lawful  purpose  connected  with  the  opera- 
tions of  the  company,  such  corporation  may  acquire 
title  to  such  real  estate  or  right  of  way,  or  easement  or 
other  right,  in  the  manner  provided  by  law,  for  the  con- 
demnation of  real  estate,  or  right  of  way,  and  any  ditch, 
reservoir  or  pipe-line  company  man  in  the  same  manner 
condemn  and  acquire  the  right  to  take  and  use  any 
water  not  previously  appropriated. 

Approved  April  9,  1891. 


IRRIGATION   LAWS.  171 


[Session  Laws  of  1891.] 

WATER  FOR  DOMESTIC  PURPOSES. 


(H.  B.  139.) 

AN   ACT 


IN    RELATION    TO    WATER     FOR    DOMESTIC    PURPOSES. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  Water  claimed  and  appropriated  for 
domestic  purposes  shall  not  be  employed  or  used  for 
irrigation  or  for  application  to  lands  or  plants  in  any 
manner  to  any  extent  whatever;  Provided,  That  the 
provisions  of  this  section  shall  not  prohibit  any  citizen 
or  town  or  corporation  organized  solely  for  the  purpose 
of  supplying  water  to  the  inhabitants  of  such  city  or 
town  from  supplying  water  thereto  for  sprinkling 
streets  and  and  extinguishing  fires,  or  for  household 
purposes. 

SEC.  2.  Any  person  claiming  the  right  to  divert 
water  for  domestic  purposes  from  any  natural  stream, 
who  shall  apply  or  knowingly  permit  the  water  so 
diverted  to  be  applied  for  other  than  domestic  purposes, 
to  the  injury  of  any  other  person  entitled  to  use  such 
water  for  irrigation,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  shall  pay  a  fine  of  not  less 
than  fifty  dollars  and  not  exceeding  two  hundred 
dollars,  in  the  discretion  of  the  court  wherein  conviction 
is  had.  Each  day  of  such  improper  application  of  water 
obtained  in  the  manner  aforesaid  shall  be  deemed  a 
separate  offense.  Justices  of  the  peace  in  their  several 
precincts  shall  have  jurisdiction  of  the  aforesaid  offense, 
subject  to  the  right  of  appeal  as  in  cases  of  assault  and 
battery. 

SEC.  3.  In  consequence  of  the  near  approach  of 
the  irrigation  season  and  to  avoid  litigation,  it  is  deemed 
that  an  emergency  exists ;  and  therefore,  this  act  shall 
take  effect  from  and  after  the  time  of  its  approval. 

Approved  April  i,  1891. 


1 72  IRRIGATION    LAWS. 

[Session  L,aws  of  1893.] 

CHAPTER  84. 


EMINENT   DOMAIN.— DRAINAGE   OF   SURPLUS 
WATER. 


(S.  B.  103,  by  Senator  Boyd.) 

AN    ACT 

TO  PROVIDE  FOR  THE  DRAINAGE  OF  WET  LAND. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i%  That  whenever  the  owner  or  owners 
of  any  parcel  or  parcels  of  land  desire  to  construct  a 
drain  for  the  purpose  of  carrying  off  surplus  water,  and 
they  cannot  agree  among  themselves  or  with  the  parties 
who  own  the  land  below,  through  which  it  is  expedient 
to  carry  the  drain  in  order  to  reach  a  natural  waterway, 
then  proceedings  may  be  had  in  the  same  manner  as  in 
cases  of  eminent  domain  affecting  irrigation  works  of 
diversion,  and  the  right  of  way  for  such  drains  shall  be 
regarded  as  equal  to  that  of  irrigation  canals. 

Approved  March  21,  1893. 


IRRIGATION   LAWS.  173 

CHAPTER  97. 


GAME. 


(H.  B.  366,  by  Mr.  Dake.) 

AN   ACT 


TO  PROHIBIT  AND  REGULATE  THE  KILLING,  TRAPPING  OR  OTHER- 
WISE TAKING,  THE  TRANSPORTATION  OR  SALE  OF  CERTAIN 
ANIMALS,  FISH  AND  BIRDS;  TO  PROVIDE  PENALTIES  FOR  THE 
VIOLATION  OF  THIS  ACT,  AND  TO  REPEAL  ALL  ACTS  OR  PARTS 
OF  ACTS  INCONSISTENT  HEREWITH. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

Page  278 — Sec.  15.  No  person  shall  kill,  wound, 
ensnare  or  entrap  any  beaver  within  the  state  of  Colo- 
rado at  any  time;  Provided,  That  this  shall  not  prohibit 
owners  of  canals  or  ditches  from  killing  beaver  that 
interfere  with  said  canals  or  ditches. 

Approved  April  7,  1893. 


CHAPTER  135. 


PUBLIC  LANDS. — BOARD  OF  LAND  COMMISSIONERS 

—REGULATE  DISTRIBUTION  OF  WATER  FROM 

STATE  CANALS  AND  RESERVOIRS  AND 

CHARGE  FOR  CARRIAGE. 


H.  B.  511,  by  Mr.  Gordon.) 

AN    ACT 

TO  DIRECT  THE  STATE  BOARD  OF  LAND  COMMISSIONERS  TO~REGU- 
LATE  THE  DISTRIBUTION  OF  WATER  FROM  STATE  CANALS  AND 
RESERVOIRS. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  Until  otherwise  authorized  by  law, 
the  board  of  land  commissioners  is  hereby  directed  to 
regulate  the  distribution  of  water  from  state  canals  and 


174  IRRIGATION   LAWS. 

reservoirs  under  such  rules  and  regulations  as  said  board 
shall  deem  to  be  for  the  best  interests  of  the  state  "and 
to  charge  and  collect  rental  for  the  carriage  of  water 
therein." 

Approved  April  10,  1893. 


CHAPTER  107. 


IRRIGATION.— CONVEYANCE  OF  WATER  RIGHTS. 


(H.  B.  211,  Mr.  Fitzgerald.) 

AN   ACT 

RELATING  TO  THE  CONVEYANCE  OF  WATER  RIGHTS, 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  In  the  conveyance  of  water  rights 
hereafter  made  in  this  state,  in  all  cases  except  where 
the  ownership  of  stock  in  ditch  companies  or  other  com- 
panies constitute  the  ownership  of  a  water  right,  the 
same  formalities  shall  be  observed  and  complied  with  as 
in  the  conveyance  of  real  estate. 

Approved  April  7,  1893. 


IRRIGATION   LAWS.  175 

CHAPTER  108. 


IRRIGATION— FLOW  OF  WATER  IN  DITCHES. 


(H.  B.  70,  by  Mr.  Crowley.) 

AN    ACT 

TO  AMEND  SECTION  ONE  OF  AN  ACT  ENTITLED  "AN  ACT  REGULAT- 
ING THE  DISTRIBUTION  OF  WATER,  THE  SUPERINTENDENCE  OF 
CANALS  OR  DITCHES  USED  FOR  THE  PURPOSES  OF  IRRIGATION, 
AND  PROVIDING  A  PENALTY  FOR  THE  VIOLATION  THEREOF, 
APPROVED  MARCH  19,  1887. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  That  section  one  (i)  of  an  act  entitled 
"An  act  regulating  the  distribution  of  water,  the  super- 
intendence of  canals  or  ditches  used  for  the  purposes  of 
irrigation,  and  providing  a  penalty  for  the  violation 
thereof,"  approved  March  19,  1887,  be  and  the  same  is 
amended  to  read  as  follows: 

SEC.  i.  Every  person  or  company  owning  or  con- 
trolling any  canal  or  ditch  used  for  the  purposes  of  irri- 
gation and  carrying  water  for  pay  shall,  when  demanded 
by  the  users  during  the  time  from  April  i  until  Novem- 
ber i,  in  each  year,  keep  a  flow  of  water  therein,  so  far 
as  may  be  reasonably  practicable  for  the  purpose  of  irri- 
gation, sufficient  to  meet  the  requirements  of  all  such 
persons  as  are  properly  entitled  to  the  use  of  water 
therefrom,  to  the  extent,  if  necessary,  to  which  such 
persons  may  be  entitled  to  water,  and  no  more;  Pro- 
vided, however,  That  whenever  the  rivers  or  public 
streams  or  sources  from  which  the  water  is  obtained  are 
not  sufficiently  free  from  ice,  or  the  volume  of  water 
therein  is  too  low  and  inadequate  for  that  purpose,  then 
such  canal  or  ditch  shall  be  kept  with  as  full  a  flow  of 
water  therein  as  may  be  practicable,  subject,  however, 
to  the  rights  of  priorities  from  the  streams  or  other 
sources,  as  provided  by  law,  and  the  necessity  of  clean- 
ing, repairing  and  maintaining  the  same  in  good  con- 
dition. 


176  IRRIGATION    LAWS. 

SEC.  2.  In  the  opinion  of  the  General  Assembly 
an  emergency  exists;  therefore,  this  act  shall  take 
effect  and  be  in  force  from  and  after  its  passage. 

Approved  March  25,  1893. 


CHAPTER  109. 


IRRIGATION.— WATER  DISTRICTS  Nos.  12  AND  13. 


(H.  B.  327,  by  Mr.  Wells.) 

AN   ACT 

TO  AMEND  AN  ACT  ENTITLED  "  AN  ACT  TO  REPEAL  SECTION  FIVE  (5) 
OF  AN  ACT  ENTITLED  '  AN  ACT  TO  PROVIDE  FOR  THE  APPOINT- 
MENT OF  A  STATE  ENGINEER,  AND  TO  DEFINE  HIS  DUTIES  AND 
REGULATE  HIS  PAY,  AND  FOR  THE  APPOINTMENT  OF  HIS  ASSIST- 
ANTS AND  THE  ESTABLISHMENT  OF  WATER  DIVISIONS,  APPROVED 
MARCH  5,  1881,  THE  SAME  BEING  SECTION  EIGHTEEN  HUNDRED 
AND  SIX  OF  THE  GENERAL  STATUTES,  1883.  AND  ALSO  TO  AMEND 
SECTION  FIFTEEN  (15)  OF  AN  ACT  ENTIT1ED  'AN  ACT  TO  REGU- 
LATE THE  USE  OF  WATER  FOR  IRRIGATION,  AND  PROVIDING  FOR 
SETTLING  THE  PRIORITY  OF  RIGHT  THERETO,  AND  FOR  THE  PAY- 
MENT OF  THE  EXPENSES  THEREOF,  AND  FOR  THE  PAYMENT  OF 
ALL  COSTS  AND  EXPENSES  INCIDENT  TO  SAID  REGULATION  OF 
USE.'  APPROVED  FEBRUARY  19,  1879;  THE  SAME  BEING  SECTION 
SEVENTEEN  HUNDRED  AND  FIFTY-ONE  OF  THE  GENERAL  STAT- 
UTES OF  1883,  AND  TO  ESTABLISH  THE  SAN  JUAN  WATER  DIVISION, 
ALSO  TO  CREATE  WATER  DISTRICTS  IN  ESTABLISHED  WATER 
DIVISIONS;  ALSO  TO  PROVIDE  FOR  UTILIZING  TESTIMONY  HERE- 
TOFORE OFFERED  AS  EVIDENCE  IN  THE  ADJUDICATION  OF  WATER 
RIGHTS."  APPROVED  APRIL  i,  1885. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  That  section  5  of  an  act  entitled  "  an 
act  to  repeal  section  five  (5)  of  an  act  entitled  'an  act  to 
provide  for  the  appointment  of  a  state  engineer  and  to 
define  his  duties  and  regulate  his  pay  and  for  the  ap- 
pointment of  his  assistants,  and  the  establishment  of 
water  divisions.'  Approved  March  5,  1881.  The  same 
being  section  eighteen  hundred  and  six  of  the  General 
Statutes  1883;  and  also  to  amend  section  fifteen  (15)  of 
an  act  entitled  'an  act  to  regulate  the  use  of  water 
for  irrigation,  and  providing  for  selling  the  priorities  of 
rights  thereto,  and  for  the  payment  of  the  expenses 


IRRIGATION    LAWS.  177 

thereof,  and  for  the  payment  of  all  costs  and  expenses 
incident  to  said  regulation  of  use,  approved  Feb- 
ruary 19,  1879,  the  same  being  section  seventeen 
hundred  and  fifty-one  of  the  General  Statutes  of 
1883;  and  to  establish  the  San  Juan  water  division; 
also  to  create  water  districts  in  established  water 
divisions;  also  to  provide  for  utilizing  testimony  here- 
tofore offered  as  evidence  in  the  adjudication  of  water 
rights;"  approved  April  i,  1885,  be  and  the  same  is 
hereby  amended  so  as  to  read  as  follows: 

SEC.  5.  That  district  number  twelve  (12)  shall  con- 
sist of  all  lands  irrigated  from  ditches  or  canals  taking 
water  from  that  part  of  the  Arkansas  river  lying  in 
Fremont  county,  also  all  lands  irrigated  from  ditches  or 
canals  taking  water  from  the  tributaries  of  said  portion 
of  the  Arkansas  river,  except  that  part  of  Grape  creek 
which  lies  above  the  south  line  of  said  Fremont  county. 

SEC.  2.  That  section  6  of  said  act  be  amended  to 
read  as  follows:  Sec.  6.  That  district  number  thirteen 
(13)  shall  consist  of  all'  lands  irrigated  from  ditches  or 
canals  taking  water  from  that  part  of  Grape  creek  and 
its  tributaries  lying  in  Custer  county. 

Approved  April  8,  1893. 


CHAPTER    116. 


LIENS — FOR  CLEANING  AND  REPAIRING  UNINCOR- 
PORATED IRRIGATING  DITCHES. 


(H.  B.  100,  by  Mr.  Dean.) 

AN   ACT 

TO  SECURE  LIENS  UPON  INTERESTS  IN  UNINCORPORATED  IRRIGAT- 
ING DITCHES  OF  CO-OWNERS  WHO  FAIL  AND  REFUSE  TO  ASSIST 
IN  CLEANING  AND  REPAIRING  SUCH  DITCHES. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  All  co-owners  of  unincorporated  irri- 
gating ditches  shall  pay  for  the  necessary  cleaning  and 
repairing  of  such  ditches  in  the  proportion  that  their 


178  IRRIGATION    LAWS. 

respective  interests  bear  to  the  total  expenses  incurred 
in  said  cleaning  and  repairing ;  Provided,  That  any 
such  co-owner  may  perform  labor  in  cleaning  and  repair- 
ing such  ditch,  equivalent  in  value  to  his  or  their  share 
of  such  expenses  as  aforesaid ;  Provided,  No  co-owner 
shall  be  held  liable  for  cleaning  and  repairing  any  ditch 
below  the  point  from  which  he  takes  his  portion  of  the 
water. 

SEC.  2.  Upon  the  failure  of  any  one  or  more  of 
several  co-owners,  upon  written  request  of  the  owners 
of  one-third  (^)  of  the  carrying  capacity,  or  board  of 
directors  to  assist  in  cleaning  and  repairing  such  ditch, 
the  other  co-owner  or  co-owners  shall  proceed  to  clean 
and  repair  the  same,  and  shall  keep  an  accurate  account 
of  the  cost  and  expenses  incurred  ;  and  shall,  upon  the 
completion  of  such  work  deliver  to  each  of  such  delin- 
quent co-owners,  his  agent,  lessee  or  legal  representative, 
an  itemized  statement  of  such  cost  and  expenses. 

SEC.  3.  The  co-owner  or  co-owners  of  any  such 
ditch  or  canal  who  shall  clean  and  repair  the  same,  as 
specified  in  section  two  (2)  of  this  act,  shall  have  a  lien 
upon  the  interest  in  such  ditch  owned  by  such  delin- 
quent co-owner  for  his  proportion  of  such  cost  and 
expense. 

SEC.  4.  Any  person  wishing  to  avail  himself  of 
the  provisions  of  this  act  shall  file  for  record  in  the 
office  of  the  recorder  of  the  county  wherein  the  ditch 
to  be  affected  by  the  lien  is  situated,  within  thirty  (30) 
days  after  the  completion  of  such  work,  a  statement 
addressed  to  the  owner  or  owners  of  the  interest  upon 
which  such  lien  is  claimed,  specifying  the  name  of  the 
ditch  and  the  extent  of  the  interest  in  the  same  upon 
which  such  lien  is  claimed,  the  date  upon  which  the 
work  was  commenced  and  the  date  upon  which  it  was 
completed,  the  total  amount  expended  on  such  ditch, 
and  the  amount  due  from  such  delinquent  co-owners. 
Said  statement  shall  be  signed  and  verified  upon  oath 
by  a  claimant. 

SEC.  5.  Any  party  claiming  a  lien  under  the  pro- 
visions of  this  act  may  assign  in  writing  his  claim  and 


IRRIGATION    LAWS.  179 

time  to  any  person,  who  shall  thereafter  have  all  the 
right  and  remedies  of  the  assignor. 

SEC.  6.  No  lien  claim  by  virtue  of  this  act  shall 
hold  the  property  longer  than  six  (6)  months  after  filing 
the  statement  described  in  section  four  (4),  unless  an 
action  to  be  commenced  within  that  time  to  enforce  the 
same. 

SEC.  7.  Actions  to  enforce  liens  claimed  by  virtue 
of  this  act  shall  be  commenced  and  prosecuted  in  accord- 
ance with  the  procedure  in  other  civil  actions  in  the 
state  of  Colorado.  Each  party  who  shall  establish  his 
claim  under  this  act  shall  have  a  judgment  against  the 
party  personally  liable  to  him,  for  the  full  amount  of 
his  claim  so  established,  and  shall  have  a  lien  decreed 
and  determined  upon  the  ditch  interest  to  which  his 
lien  shall  have  attached,  to  the  extent  of  his  said  claims; 
Provided,  however,  That  no  judgment  shall  exceed  the 
interest  of  the  party  in  such  ditch  ;  nor  shall  execution 
issue  against  other  than  this  said  interest  in  said  ditch. 

SEC.  8.  The  court  shall  cause  such  ditch  interest 
to  be  sold  in  satisfaction  of  said  lien  and  costs,  as  in 
case  of  foreclosure  of  mortgages,  and  in  manner  and 
form  provided  for  sales  un  executions  issued  out  of 
courts  of  record,  and  the  owner  and  creditors  shall  have 
a  right  to  redeem,  as  is  provided  for  in  cases  of  sales  of 
real  estate  on  execution. 

SEC.  9.  In  all  actions  brought  to  enforce  liens 
claimed  under  the  provisions  of  this  act  in  which  the 
plaintiff  is  successful,  a  reasonable  attorney's  fee,  to  be 
fixed  by  the  court,  shall  be  assessed  against  the  defend- 
ant and  shall  be  taxed  as  costs  in  the  case.  And  the 
plaintiff,  if  successful,  shall  also  recover  all  other  costs 
and  expenses  incured  [incurred]  in  claiming  and  enforc- 
ing his  lien. 

SEC.  10.  The  claimant  of  any  such  lien,  the  state- 
ment of  which  has  been  recorded  as  aforesaid,  on  the 
payment  of  the  amount  claimed,  together  with  the  costs 
of  making  and  recording  such  statement  and  costs  of 
satisfaction,  shall,  at  the  request  of  any  person  inter- 
ested in  the  ditch  interest  charged  therewith,  enter  or 


l8o  IRRIGATION    LAWS. 

cause  to  be  entered  of  record  satisfaction  of  the  same  ; 
and,  if  he  shall  neglect  or  refuse  to  do  so  within  ten  (10) 
days  after  such  request  he  shall  forfeit  and  pay  to  the 
person  making  such  request  the  sum  of  ten  (10)  dollars 
for  every  day  of  such  neglect  or  refusal,  to  be  recovered 
in  the  same  manner  as  other  debts.  Any  such  state- 
ment may  be  cancelled  on  the  margin  of  the  record  by 
an  acknowledgment  of  satisfaction  over  the  signature 
of  the  claimant,  or  an  agent  authorized  thereto  in 
writing. 

Approved  April  8,  1893. 


CHAPTER  152. 


STATE  CANAL  NO.  i.— BOARD  OF  CONTROL. 


(H.  B.  235,  by  Mr.  Gordon.) 

AN    ACT 


CREATING  A  BOARD  OF  CONTROL  FOR  THE  COMPLETION  AND  CON- 
STRUCTION OF  STATE  CANAL  NUMBER  ONE  AND  RESERVOIRS 
CONNECTED  THEREWITH,  AND  PROVIDING  FOR  THE  CONSTRUC- 
TION, COMPLETION,  OPERATION  AND  MAINTENANCE  OF  THE 
SAME. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  There  is  hereby  created  a  board  to  be 
known  as  "  The  Board  of  Control  of  State  Canal  Num- 
ber One  and  reservoirs  connected  therewith."  The  said 
board  shall  be  composed  of  the  lieutenant-governor,  who 
shall  be  chairman,  the  state  engineer  and  the  warden  of 
the  penitentiary.  The  secretary  of  the  state  board  of 
land  commissioners  shall  be  secretary  of  said  board  of 
control.  Said  board  is  hereby  charged  with  the  duty  of 
securing  the  early  completion  of  state  canal  number  one 
and  reservoirs  connected  therewith,  and  of  the  opera- 
tion and  maintenance  of  the  same  as  herein  provided. 

SEC.  2.  It  shall  be  the  duty  of  the  state  engineer 
to  prepare  plans  and  specifications  upon  and  according 
.to  the  survey  already  established  by  the  state  engineer, 


IRRIGATION    LAWS.  l8l 

and  now  on  file  in  his  office,  pertaining  to  the  construc- 
tion and  completion  of  state  canal  number  one  and  res- 
servoirs  connected  therewith.  From  a  point  where  line 
of  said  canal  crosses  east  line  of  township  eighteen,  east 
of  and  below  the  present  constructed  part  of  the  same, 
east  of  the  "Prison  Hogback"  near  Canon  City,  south  of 
range  seventy  (70)  west,  eastward  to  the  end  of  said 
canal  as  now  projected  and  surveyed;  and  pertinent  to  the 
construction  of  all  appurtenances  necessary  to  the  suc- 
cessful operation  of  said  canal,  except  lateral  ditches 
therefrom  and  the  head-gates  for  such  lateral  ditches. 
It  shall  also  be  the  duty  of  the  state  engineer  to  make 
any  survey  which  may  be  necessary  to  the  thorough 
preparation  of  such  plans  and  specifications,  and  to  sub- 
mit such  plans  and  specifications  as  soon  as  may  be  to 
the  board  of  control  of  state  canal  number  one  and  res- 
servoirs  connected  therewith,  created  and  constituted  as 
herein  provided. 

SEC.  3.  Upon  the  completion  and  submission  of 
the  plans  and  specifications,  as  hereinbefore  provided,  it 
shall  be  the  duty  of  such  board  of  control  to  carefully 
review  and  consider  the  same,  and  after  making  changes 
and  modifications  therein,  if  such  should  seem  advis- 
able, to  approve  such  plans  and  specifications.  There- 
upon it  shall  be  the  duty  of  the  secretary  of  said  board 
of  control  to  advertise,  for  at  least  thirty  consecutive 
days,  for  bids  for  the  completion  of  said  canal  in  accord- 
ance with  such  plans  and  specifications;  such  advertise- 
ments to  be  made  in  three  or  more  papers,  one  or  more 
of  which  shall  be  published  in  the  city  of  Denver,  one 
in  the  county  of  Fremont  and  one  in  the  city  of  Pueblo. 
The  state  board  of  land  commissioners,  in  order  to  facili- 
tate the  construction  of  said  canal  and  reservoirs,  may, 
in  conjunction  with  the  board  of  control,  advertise  and 
offer  for  sale,  at  not  less  than  minimum  price,  every 
alternate  quarter  section  of  the  state  and  school  lands 
lying  under  the  said  canal. 

SEC.  4.  The  board  of  control  may  enter  into  a 
contract  as  herein  set  forth;  Provided,  however,  That 
such  contract,  if  awarded,  shall  be  awarded  to  the  low- 
est responsible  bidder;  And  provided,  also,  That  the 


1 82  IRRIGATION    LAWS. 

said  board  may,  at  its  discretion,  reject  any  and  all  bids, 
in  which  event  they  shall  direct  the  secretary  of  said 
board  to  re-advertise  for  bids  for  the  performance  of 
such  work. 

SEC.  5.  The  contract  for  the  completion  of  state 
canal  number  one  and  reservoirs  connected  therewith 
shall  be  prepared  by  the  attorney  general,  and  shall 
provide,  among  other  thing,  for  the  completion  of  such 
canal  in  accordance  with  the  plans  and  specifications 
approved  by  the  said  board  of  control,  within  a  period  of 
eighteen  (18)  months  from  date  of  said  contract;  and  shall 
provide  for  the  payment  of  such  work  in  accordance 
with  the  provisions  concerning  payments  hereinafter 
made  in  this  act.  The  attorney  general  shall  also  pre- 
pare a  bond  in  the  penal  sum  of  one  hundred  thousand 
dollars  ($100,000)  for  the  faithful  performance  of  the 
work  of  completing  said  canal  in  accordance  with  said 
contract,  which  bond  must  be  signed  by  at  least  ten 
good  and  sufficient  sureties  satisfactory  to  a  majority  of 
said  board  of  control. 

SEC.  6.  Payment  to  the  contractors  for  the 
material  and  labor  furnished  and  performed  in  the  con- 
struction and  completion  of  said  canal  shall  be  made  by 
means  of  certificates  of  indebtedness  upon  the  comple- 
tion of  each  five  (5)  miles  of  said  canal,  in  sums  not  to 
exceed  ninety  per  cent,  of  the  state  engineer's  estimated 
cost  therefor;  and  upon  completion  and  acceptance  by 
the  board  of  control  of  the  whole  line  of  said  canal  the 
whole  amount  of  the  contract  price  shall  be  so  paid  in 
certificates  as  herein  provided. 

SEC.  7.  Upon  the  presentation  to  the  auditor  of 
the  written  acceptance  of  such  work  by  the  engineer, 
approved  as  herein  provided,  it  shall  be  the  duty  of  the 
auditor  to  issue  in  favor  of  the  contractor  performing 
the  work,  or  those  duly  authorized  by  him  to  receive 
the  same,  certificates  of  indebtedness,  which  certificates 
of  indebtedness  shall  show  upon  their  face  that  they 
bear  five  per  cent,  interest  per  annum,  payable  sem- 
annually  from  the  date  of  their  issuance  until  paid;  that 
they  are  issued  in  lieu  of  immediate  money  compensa- 
tion for  materials  and  labor  furnished  and  performed  in 


IRRIGATION    LAWS.  183 

constructing  the  state  canal  number  one  and  reservoirs 
connected  therewith,  and  such  other  things  and 
materials  as  to  the  auditor  may  seem  pertinent  and  use- 
ful. The  certificates  of  indebtednesss,  so  issued,  shall 
be  for  one  thousand  dollars  ($1,000)  each,  numbered 
consecutively.  One-fourth  of  the  entire  amount  shall 
be  due  five  years  from  the  date  thereof;  one-fourth  shall 
be  due  and  payable  ten  years  from  the  date  thereof;  one- 
fourth  shall  be  due  and  payable  fifteen  years  from  the 
date  thereof,  and  one-fourth  shall  be  due  and  payable 
twenty  years  from  the  date  thereof.  Such  certificates 
of  indebtedness  shall  be  countersigned  by  the  treasurer 
and  approved  by  the  governor.  These  certificates  may 
be  accepted  by  the  state  in  payment  for  the  carriage  of 
water  or  in  payment  for  lands,  and  the  same  shall  not 
in  any  event  become  a  claim  against  the  state  except  as 
to  said  funds  so  to  be  received. 

SEC.  8.  Upon  completion  of  said  canal  and  its 
acceptance  and  approval,  as  hereinbefore  provided,  the 
said  board  of  control  of  state  canal  number  one  and  res- 
ervoirs connected  therewith,  shall  turn  over  the  said 
canal,  together  with  all  drawings,  specifications,  reports 
and  records  pertaining  to  said  canal,  and  the  action  of 
said  board  of  control,  to  the  state  board  of  land  commis- 
sioners; whereupon  the  state  board  of  land  commission- 
ers shall  assume  control  of  said  canal,  and  shall  therein- 
after control,  operate  and  maintain  the  same,  subject  to 
such  provisions  of  law  as  may  hereafter  be  made  and 
established. 

SEC.  9.  It  shall  be  the  duty  of  the  state  board  of 
land  commissioners  to  cause  the  waters  carried  in  the 
state  canal  No.  i  and  reservoirs  connected  therewith  to 
be  applied  to  the  irrigation  of  the  state  lands  and  all 
other  lands  lying  under  said  canal  at  the  earliest  con- 
venient and  practicable  times,  and  as  a  means  among 
others  to  effect  such  use  of  water,  the  board  of  land  com- 
missioners are  authorized  to  offer  numerous  portions  of 
said  lands  for  lease  at  such  reasonable  prices  and  for 
such  periods,  not  exceeding  twenty  years,  as  will  be 
conducive  to  the  rapid  settlement  of  such  lands  and  the 
earlv  use  of  such  waters. 


184  IRRIGATION    LAWS. 

SEC.  10.  The  said  board  of  control  of  state  canal 
No.  i  and  reservoirs  connected  therewith  is  here  given 
all  the  rights  and  powers  that  an  individual  or  corpora- 
tion now  has  or  may  hereafter  have  under  the  laws  of 
the  state,  or  of  the  United  States,  to  acquire  the  right 
of  way  over,  upon  and  to  any  lands  necessary  for  it  to 
use  or  occupy  in  the  construction  and  maintenance  of 
such  canal. 

SEC.  ii.  It  shall  be  the  duty  of  the  state  board  of 
land  commissioners  to  establish  from  time  to  time  rea- 
sonable annual  charges  for  the  carriage  of  water,  or  sell 
perpetual  rights  of  water,  if  deemed  by  it  more  expe- 
dient. 

SEC.  12.  The  title  to  the  said  canal  shall  vest  and 
remain  with  the  state  of  Colorado,  and  any  money  re- 
ceived for  the  carriage  of  water  therein  shall  be  devoted 
to  the  maintenance  and  operation  of  such  canal;  and 
surplus  over  and  above  the  cost  of  operation  and  main- 
taining such  canal  shall  be  converted  into  the  state 
treasury,  and  applied  by  the  state  treasurer  to  meeting 
the  certificates  of  indebtedness  herein  provided  for  and 
interest  thereon. 

SEC.  13.  It  shall  be  the  duty  of  the  said  board  of 
land  commissioners  to  construct  from  time  to  time,  and 
as  rapidly  as  may  seem  to  such  board  advisable,  lateral 
ditches  and  the  necessary  appurtenances  thereto  for  sup- 
plying the  lands  of  the  state  lying  under  said  canal  with 
water  for  irrigation,  and  to  see  that  all  of  such  lands  be- 
longing to  the  state  are  brought  under  cultivation  within 
a  reasonable  time. 

SEC.  14.  Any  receipts  or  certificates  heretofore 
issued  in  return  for  subscriptions  and  advancement  of 
money  by  persons  owning  lang  (land)  along  the  line  of 
state  canal  No.  i  and  reservoirs  connected  therewith 
shall  be  received  in  lieu  of  money  for  the  lawful  and 
reasonable  charges  for  the  carriage  of  water  in  the  said 
canal,  and  all  of  the  certificates  hereafter  issued,  as 
herein  provided,  shall  be  received  in  lieu  of  money  for 
charges  for  the  carriage  of  water  in  said  canal  or  for  per- 
petual water  rights  thereunder. 


IRRIGATION   LAWS.  185 

SEC.  15.  The  members  of  the  state  board  of  con- 
trol of  state  canal  No.  i  and  reservoirs  connected  there- 
with shall  be  entitled  to  their  reasonable  traveling  ex- 
penses while  performing  the  duties  herein  laid  upon 
them,  for  which  amounts  the  auditor  shall  draw  war- 
rants upon  the  state  treasurer,  when  such  amounts  shall 
be  duly  certified  to  him  by  the  secretary  of  the  said 
board  of  control. 

SEC.  16.  All  acts  and  parts  of  acts  inconsistent 
with  the  provisions  of  this  act  are  hereby  repealed. 

SEC.  17.  It  is  the  opinion  of  the  assembly  that  an 
emergency  exists;  therefore,  this  act  shall  be  in  force  on 
and  after  its  passage. 

Approved  April  17,  1893. 


CHAPTER  153. 


STATE  RESERVOIR.— MONUMENT  CREEK  APPRO- 
PRIATION. 


(H.  B.  166,  by  Mr.  Wootton  by  request.) 

AN    ACT 

TO  PROVIDE  FOR  THE  STATE  RESERVOIRS  AT  MONUMENT  CREEK,  IN 
EL  PASO  COUNTY,  AND  FOR  THE  COMPLETION  OF  SAID  RESERVOIR 
AND  APPROPRIATING  MONEY  FOR  THE  PAYMENT  OF  THE  SAME. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  There  is  hereby  appropriated  out  of 
any  money  in  the  state  treasury  belonging  to  the  in- 
ternal improvement  fund,  and  not  otherwise  appro- 
priated, the  sum  of  four  thousand  dollars  ($4,000),  or  so 
much  thereof  as  may  be  necessary  for  the  purchase  of 
lands  for  the  state  reservoir  at  Monument  Creek,  in  El 
Paso  county,  and  for  the  rip-rapping  or  paving  the  spill 
way  to  said  reservoir. 

SEC.  2,  The  board  of  construction  for  said  reser- 
voir as  named  in  the  act  providing  for  the  construction 


1 86  IRRIGATION    LAWS. 

therefor  approved  April  16,  1891,  is  hereby  authorized 
and  directed  to  purchase  and  acquire  title,  in  behalf  of 
the  state,  to  the  land  actually  to  be  covered  at  high 
water  mark  by  the  waters  in  said  reservoir  and  by  the 
dam  and  also  a  strip  fifty  feet  in  width  extending  en- 
tirely around  said  reservoir,  pond  and  dam;  Provided, 
That  no  greater  sum  per  acre  shall  be  paid  for  any  part 
of  the  lands  thus  purchased  than  that  the  board  of  ap- 
praisers has  already  set  upon  the  same. 

SEC.  3.  The  said  board  of  construction  is  further 
authorized  and  directed  to  have  the  spillway  or  waste 
weir  of  the  said  reservoir  rip-rapped  or  paved  for  greater 
security,  this  work  not  having  been  included  in  the 
original  estimate  or  contract. 

SEC.  4.  The  auditor  of  state  is  hereby  authorized 
to  draw  warrants  for  the  payment  or  the  purchase  of 
said  lands  and  for  the  paving  or  rip-rapping  of  said  spill- 
way upon  vouchers  certified  to  by  the  aforesaid  board,  not 
exceeding  the  sum  of  four  thousand  dollars  ($4,ooo( ; 
Provided,  That  if  there  is  no  cash  in  the  treasury  be- 
longing to  said  fund,  then  the  state  auditor  is  hereby 
authorized  to  sell  any  warrants  or  the  securities  in  his 
hands  belonging  to  said  fund;  Provided,  Such  securities 
shall  not  be  sold  for  less  than  par  and  accrued  interest 
thereon. 

SEC.  5.  In  the  opinion  of  the  General  Assembly 
an  emergency  exists,  therefore  this  act  shall  take  effect 
and  shall  be  in  force  from  and  after  its  passage. 

(NOTE. — This  bill  was  filed  with  the  secretary  of 
state  without  the  govervor's  signature  and  without  his 
objection  on  May  3,  1893,  an(^  hence  became  a  law 
under  constitution,  art.  V.,  sec.  2.  Secretary  of  state.) 


INDEX, 


INDEX. 


PAGE.  SEC. 

Letter  of  Instruction  to  Superintendents  and  Commissioners  5-13 

VESTED  RIGHTS— 

right  of  way  over  government  land ...  13  2339 

PATENTS- 

subjected  to  vested  rights 13  2340 

NATURAL  STREAM— 

water  unappropriated;  dedication  of 15  510 

right  to  divert 16  511 

appropriation;  right  by  prior. __ 16  511 

domestic  use  has  priority 16  511 

agricultural  use  before  manufacturing 16  511 

ditches,  canals,  etc.,  right  of  way 45  512 

just  compensation... 45  512 

water  rates,  how  established 45  513 

RIGHT  OF  WAY— 

through  lands  to  stream 69  2257 

limitation  of  right 70  2258 

on  tract  of  land,  one  ditch  only,  unless 70  2261 

shortest  and  most  direct  route. 71  2262 

ditch ,  enlargement  of. 72  2263 

extend  up  stream,  when.. ...  72  2264 

limitation  on  use 72  2264 

plat;  filing  in  recorder's  office. ; 73  2265 

for  irrigation  only 75  2266 

condemnation,  when 59  1716 

70  2260 

72  2264 

meadow  land,  for  ditch,  when 76  2268 

priority  of  right 76  2269 

reservoir  has,  to  and  from,  when...  76  2270 


INDEX. 

conduct  water  by  natural  stream,  when 77  2271 

may  reclaim,  less  allowances _.  77  2271 

liability  for  damage 77  2272 

wheel,  on  stream  to  raise 78  2273 


DITCH- 


embankments,  care  of. 78  2274 

wilful  injury  to 52  571 

113  •       2393 

jurisdiction  of  justice 114  2394 

action  for  damages 54  574 

tail  ditch,  construct 78  2274 

outlet,  construct 84  2288 

constructed,  how 84  2289 

waste  gates,  construct 86  2293 

head  gate,  construct 83  2285 

constructed  how 86  2283 

neglect,  liability 83  2286 

failure  after  commissioner's  notice 86  2293 

commissioner  construct 86  2293 

non-payment  of  cost 86  2293 

locks  and  fastenings  on  head-gates 86  2294 

not  applied  after  notice 86  2294 

commissioner  provide 86  2294 

action  for  cost 86  2294 

commissioners  keep  key,  when 86  2294 

unauthorized  meddling  with no  2385 

crossing  highway  bridged" 79  2275 

limit  of  time  to  bridge ._  80  2277 

supervisors  construct,  when So  2277 

at  owner's  expense 80  2277 

recovery  of  cost 81  2281 

damages  also Si  2281 

in  city  covered  or  flu med 80  2278 

repairs,  etc 80    2278.2279 

flume  head  latticed  or  slatted Si  2279 

failure  to  comply 81 

taxation,  exemption  from,  when 115  2397 

waste,  prevent 82    2282,  2283 

excess  of  flow  forbidden 82  2283 

114  2395,  2396 

penalty,  recovery.. ... 82  2284 

pollution  of  water  in 59  1376 

flow  of  water  regulated 83  2287 

repair  ... 84 

superintendent  appoint 84  2289 

duty:  measure  supply ..  84 

water  commissioner  not  measuring  on  demand 85  2291 

delivery  of  water;  duty  of  receiver  to  prevent  excessive 114    2395,  2396 

failure  to  prevent,  liability 115  2396 

dishonest   delivery 115  2398 

neglect,  etc.,  to  deliver  water 84  2290 

96    2306,  2307 

interference  with  delivery 84  2290 

penalty  and  action 84    2290,  2291 


INDEX.  IQI 

jurisdiction  of  justice 85  2292 

arrest 85  2292 

jury  trial,  when 85  2292 

use  of;  supply  short,  pro  rata  distribution 75  2267 

according  to  payment,  shares,  etc 75  2267 

commissioners  to  allot,  appointment 70  2259 

alternate  week  days 70  2259 

amount 7°  2259 

reservoirs  may  store,  when 76  2270 

dam,  etc.,  subject  to  approval,  when 76  2270 


PRIORITY  OF  RIGHT— 

meadow  land,  when. ..   ..  72  2263 

seepage,  spring  waste,  as  in  case  of  streams 76  2269 

owner  of  land  where  it  first  rises  has  prior  right 76  2269 

commissioner's  duty  as  to  flow 122  2404 

124  2408 

adjudication  of  rights,  jurisdiction 116  2399 

jurisdiction  acquired,  remains  until  final  judgment.. 116  2399 

claim  filed ,  when 117  2400 

122  2405 

126  2410 

contents,   verification 117  2400 

claim  not  filed;  evidence  not  admissible 133  2424 

publication  of  stat 118  2401 

proof  of -_ 118   2401,  2402 

fee,  payment  of 118  2401 

certificate  of,  filing 119  2402 

hearing  to  be  set 119  2402 

notice  of  hearing 122  2405 

contents > 122  2405 

publication 122  2405 

proofof..  123  2406 

cost  of,  payment;   taxation..                         123  2406 

service  of.   .                        124  2407 

hearing 120  2403 

court  make  rules 132  2423 

finding,  contents 120  2403 

decree,  contents  of 120  2403 

i 24  2408 

recording  of. .__ 122  2404 

referee  appointed,  when 125  2409 

oath  of..                                   125  2409 

notice  of  hearing 126  2410 

contents 126  2410 

publication 126  2410 

proof  of 126  2410 

posting 126    2410-2411 

hearing;   rights  of  parties 127  2412 

subpoenas  issue 128  2413 

service  of. 128  2413 

administer  oaths 1 28  2413 

non-obedience  to 129  2416 

testimony  write 128  2413 

objections  note...                                  128  2413 


INDEX. 

refusal  to  produce  writings 128  2414 

finding 129  2415 

130  2419 

decree  prepared 130  2419 

disturbing  proceedings »_ 129  2416 

witness  fees,  payment 129  2417 

adj  ournments 130  2418 

report  of  court „ 130  2419 

notice  of  hearing 131  2420 

exceptions 131  2420 

neglect,  etc.,  right  of  parties 132  2422 

court  may  dismiss,  when , 137  2433 

appoint  successor 138  2433 

fees  of. 139  2436 

payment  of 139  2436 

clerk  of  court,  fees,  payment 140  2439 

evidence  of  claim  not  offered,  effect 131  2421 

re-argument,  review,  etc.,  had  when 133  2425 

within  two  years _ 133  2425 

action  lies  to  test  right,  when , 138  2434 

injunction,  when 138  2434 

limitation  of. 138  2435 

appeal  lies  towhom 134  2427 

statement  verified,  filed 134  2427 

contents 134  2427 

approval  of_ 134  2427 

bond;  penalty;  approval 134  2427 

allowance  by  order 134  2427 

notice  of  service 136  2428 

proof  of,  filed  when 137  2432 

not  filed,  dismissal 137  2432 

transcript,  when  filed 136  2429 

contents 136  2429 

not  filed,  dismissal 137  2432 

judgment,  form  of 136  2431 

costs,  discretionary ._ 136  2430 

WATER  RATES— 

county  commissioners,  established  when  ._ 51  570 

application  to  fix 87  2295 

91  2298 
hearing  set;  when 87  2295 

92  2299 
notice  of,  contents . . 87  2295 

92  2300 

service  of. 87  2295 

92  2300 

affidavit  of  service 87  2295 

92  2300 

depositions,  howtaken 87  2295 

92  2300 

hearing 88  2296 

92  2300 
subpoenas,  service  of 88  2296 

93  2301 


INDEX.  193 

witness  compel  . .     88  2296 

papers,  etc.,  compel  production  of 88  2296 

93  2301 

district  court,  compel 93  2301 

false  swearing 94  2302 

adjourn,  when  .__ 88  2296 

59  1301 

order,  contents  of 88  2296 

93  2301 

effect  of 88  2296 

tender  of  price  fixed,  rights - 89  2297 

94  2304 
96  2306 

price  not  fixed,  right  on  payment  of  current  price. ..     89  2297 

section  2297  not  apply,  when 89  2297 

unlawful  rate  demanded,  penalty 95  2305 

received  or  held,  recovery  back 94  2304 

with  costs  and  attorney's  fee 94  2304 

refusal  to  deliver  after  tender 96  2306 

prosecution  of  corporation 96  2307 

"person"  as  used  defined 97  2308 

personal  liability  for  corporation 97  2308 

irrigation  districts  constituted 97    2310,2380 

water  divisions  constituted... .  140    2440,2446 

STATE  ENGINEER— 

appointment 1 147  2458 

term,  removal 147  2458 

office  in  capitol  __ .  147  2458 

rooms  and  appurtenances  furnished . 147  2458 

oath,  bound _• 147  2458 

salary 147  2458 

control  of  public  waters 148  2459 

measurements  make.. 148  2459 

deputy  may  appoint  to  make 149  2462 

measuring  weir,  may  require  owners  to  keep 150  2466 

measurement,  unit  of 150  2467 

duties 148    2459,  2461 

149  2463 

deputies  may  appoint  and  remove 149  2464 

responsible  for  acts  of 149  2464 

oath  of,  filing  of 149  2464 

pay  of .  150  2465 

assistants  in  office  may  appoint 149  2464 

pay  of . 150  2465 

water  superintendent  subject  to in  2386 

report  to  governor ; 150  2468 

ARKANSAS  RIVER  CANAL— 

lay  out 156  2484 

water  supply,  act  on  regulations  for 156  2488 

CLEAR  CREEK  PURIFICATION— 

one  of  commission  to  experiment 158  2496 

superintend  practical  tests 158  2497 


194  INDEX. 

COAL  CREEK  RESERVOIR— 

make  plan  for 152  2471 

member  board  of  construction 152  2472 

regulate  supply  of  water 153  2475 

DIVERSION  OF  RIVER  WATERS— 

on  board  to  procure  surveys 154  2479 

commissioner  to  secure  plans,  etc 154  2480 

to  construct  canals,  etc.. 154  2480 

regulate  water  supply. ... 155  2481 

SOUTH  BOULDER  CANAL— 

acton  board  to  construct 157  2492 

SUPERINTENDENT   OF— 

appointment,  when 141  2447 

term  of  office.. 141  2447 

bond,  approval  filing 143  2452 

removal  of 141  2447 

duties 142  2448 

H3  2453 

superior  of  commissioners ;.  in  2386 

commissioners  report  to 143  2451 

H5  2455 

subject  to  state  engineer in  2386 

142  2448 

regulations,  power  to  make 142  2449 

appeal  lies  to  state  engineer .  142  2450 

duties  commence,  when 143  2451 

end,  when • 143  2451 

compensation 143  2451 

paid  how 146  2457 

decrees  as  to  priorities  furnished  to __  143  2453 

register  of. 143  2453 

court  clerk's  fees,  paid  how.  146  2457 

commissioners  may  call  out 145  2454 

may  act  as 145  2454 

supply  not  received  by  owner,  apportion 146  2456 

WATER  COMMISSIONERS— 

appointment  of_ : 109  2381 

selection  of  appointees 109  2381 

oath  of . no  2383 

bond  of;  penalty  fixed,  how 109  2381 

approval  of 109  2381 

term  of  office 109  2381 

removal  of^ no  2382 

vacancy  filled,  how no  2382 

duties ....  no  2384 

112  2391 

devote  entire  time  to,  when__   112  2391 

begin  when  called  on;  quit  wheu  not  needed 113  2392 

neglect  of,  penalty 112  2391 

keep  key  of  headgates,  etc.   when _... 94  2294 


INDEX.  195 

unauthorized  meddling  with  headgate,  etc no    2385,  2386 

open  and  shut  headgates,  etc no  2384 

in  2386 

powers  as  constable in  2386 

subject  to  state  engineer 111  2387 

pay  of,  county  pay in  2387 

several  counties  in  district,  pay  pro  rata in  2387 

itemized  account  veiified in  2387 

112  2389 

assistants,  may  employ 112  2388 

ARKANSAS  RIVER  CANAL- 

construction 155  2483 

convict  labor,  use  of. 155  2483 

state  engineer  lay  out 156  2484 

capacity  of, "  i56  2484 

right  of  way,  acquisition  of. 156  2485 

works,  title  to,  vest  in  state 156  2486 

proceeds  paid  into  treasury 156  2486 

water  rights,  contract  for  and  lease 156  2487 

subscriptions  to  construct 156  2488 

certificate  for;  interest 156  2488 

payment  of  water 156  2488 

regulations  of  use,  by  penitentiary  board  and  state  engineer.  156  2488 

appropriation 157  2489 

SOUTH  BOULDER  CANAL— 

appropriation J57  249! 

funds,  by  sale  of  warrants i58  2494 

limitation  on  expenditure i58  2495 

purposeof -  157  249* 

board  of  construction 157  2492 

water  district  >f '. 157  2493 

CLEAR  CREEK  PURIFICATION— 

commission  created.. J58  2496 

method,  practical  test i58  2497 

employe's  compensation    J59  2498 

report '59  2499 

appropriation ]59  25°° 

paymentof _ l&  25<>i 

COAL  CREEK  RESERVOIR— 

appropriation.. J5!  247° 

limitation  in  expenditure --  J5i  2470 

152  2472 

paymentof  !52  2474 

use  of  waters  stored .   ...  :5J  2470 

153  2475 
state  engineer  regulate  supply 

prepare  plan :52  2471 

construction  board J52  2472 

take  bids  and  contract J52  2473 

property  of  state J53  2475 

rights  acquired  not  impaired 2476 

damageto;  penalty J53  2477 


196  INDEX. 


DIVERSION  OF  RIVER  FLOW— 

appropriation 153  2478 

155  2482 

engineers  to  survey,  appointment .. .. 154  2479 

report  of 154  2479 

commission  to  construct  works 154  2480 

works,  state  property 155  2481 

water,  use  of .-„ 155  2481 

state  engineer  regulate 155  2481 

CODE  COMMISSION— 

appointment . .  159  2502 

duty__                                                     159    2502,2503 

revision  of  laws;  codification 160  2503 

members  regulate  labor 160  2504 

work  close,  when 160  2504 

clerical,  aid  employ 160  2504 

books,  etc.,  purchase 160  2504 

limit  of  expenditure 160  2504 

payment  of.  160  2504 

reporta  draft 160  2504 

minority  report,  when 161  2505 

when  completed 161  2505 

delivery  to 161  2505 

publication  of_ 161  2505 

compensation . ..  162 

appropriation 162 

DITCH— 

for,  three  years,  to  complete 573 

DITCH  CO.— 

for  purposes  of,  assess  stock,  when 

PUBLIC  LANDS— 

sale  to  irrigate  state  lands _ 162  3657 

at  auction,  at  up-set  price... 162  3657 

quantity  to  purchaser  limited ...  162  3657 

condition;  irrigation _ 162  3657 

contract  before  sale 162  3657 

purchaser's  bond  and  contract 162  3657 

title  pass,  when 162  3657 

TAXATION— 

ditches,  canals  and  flumes,  for,  how  assessed 163  3766 

TOWNS  AND  CITIES— 

authorize  construction  of  ditches  on  streets 165,  4403cl. 

WATER,  CANAL,  ETC.— 

purchase  or  lease 165  4539 

condition  of  right 165  4539 

election  to  authorize 165  4539 

obligations  and  duties 166  4540 


INDEX.  197 

repair,  improve,  enlarge 166  4540 

tax,  levy  aud  collect 166  4540 

management 1 66  4540 

user;  owner  on  stream's  bank,  etc.,  for 61  2256 

'     seepage  or  springs,  prior  right        76  -3269- 

CORPORATIONS— 

ditch  company  take  stock  in  telephone  company 167 

ditch  and  reservoir  company 167 

ditch  company,  additional  statement 169 

WATER   FOR   DOMESTIC   PURPOSES— 

water,  domestic  use 171 

EMINENT   DOMAIN— 

drainage  of  surplus  water 172 

GAME— 

beaver  interfering  with  ditches  may  be  killed 173 

PUBLIC    LANDS— 

board  of  land  commissioners  collect  rent    for  carriage    of 

water  in  canals ._       173  

regulate  distribution  of  water  from  canals... 173 

IRRIGATION— 

conveyance  of  water  rights 174 

flow  of  water  in  ditches 1 75 

water  districts  Nos.  12  and  13 176  

LIENS— 

for  cleaning  and  repairing  unincorporated  irrigating  ditches      177 

STATE   CANAL    No.   I— 

creating  a  board  of  control  for  completion,  etc.___. r 180 

STATE   RESERVOIR— 

Monument  Creek  appropriation 185 


TL  34382 


37997  1 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


